Akiba v Queensland (No 3)
[2010] FCA 643
•2 July 2010
FEDERAL COURT OF AUSTRALIA
Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643
SUMMARY
FINN J
2 JULY 2010
CAIRNS
SUMMARY
In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment which will be available on the internet at together with this summary.
Put shortly but inexactly, the present application has been made on behalf of Torres Strait Islanders who are descendants of an extensive list of named ancestors who were themselves Torres Strait Islanders. To prevent further delay in the hearing of the application, the original claim area has been divided into Parts A and B. My reasons relate only to Part A. It encompasses the greater part of the original claim area.
The principal respondents in this Part are the State of Queensland, the Commonwealth of Australia, a large group of people and companies collectively described as The Commercial Fishing Parties and a small number of parties from Papua New Guinea.
For Native Title Act purposes, Torres Strait and the Torres Strait Islanders are distinctive in many respects. That this is so, and the consequences of it, are markedly apparent in my reasons.
The subject matter of the present proceeding is itself distinctive. It seeks a determination of native title rights and interests in a major part of the sea area of Torres Strait. The sea in turn is the integral presence in the lives and livelihoods of the Islander communities. It has rightly been said that their occupation of the region has had “an essentially maritime character”.
Unlike in native title claims in Aboriginal Australia, the laws and customs advanced by the communities do not reflect an overarching spiritual connection with the waters. There is no creation story. Yet there are still some, for the most part minor, traditional spiritual beliefs revealed in the evidence. In consequence, the laws and customs of present concern are informed in quite some degree by considerations of utility and practicality. This has unusual ramifications in the application of accepted Native Title Act jurisprudence. No more is this so than in relation to the “connection” requirement of s 223(1)(b) of the Native Title Act 1993 (Cth).
The Applicant’s evidence is likewise distinctive. British and then Australian sovereignty over the islands of Torres Strait was acquired for the most part in progressive steps taken, first, in 1872 and then in 1879. By these dates the grandparents of some of the indigenous witnesses were alive and were directly, or via the witness’ parents, the sources of oral traditions recounted by those witnesses. From the time of Luis Baez de Torres’ passage through the Strait in 1606, Islander contact with Europeans was the subject of recorded account and observation. Notable amongst these after Cook’s rediscovery of Torres Strait were the writings of British naval officers and other mariners.
In 1864 a joint Imperial-colonial outpost was established at Somerset on the eastern tip of Cape York. At much the same time colonial occupation commenced in the Strait. It related initially to the establishment of bêche-de-mer shore fishing stations. In 1868 the pearl shell industry commenced. In 1871 the evangelisation of the Strait began with the advent of the London Missionary Society. In consequence a significant pre- and early sovereignty literature was generated and is in evidence. The most significant body of works in this are the six volumes of reports of the Cambridge Anthropological Expedition to Torres Strait. These were based largely on observations made in the Strait in 1898 by A.C. Haddon (a former zoologist) and six others. The main purpose of the Expedition was to assemble a picture of life before colonisation from the memories of the older men.
Unlike with so much of Aboriginal Australia, the acquisition of sovereignty over the islands of the Strait did not lead to the Islanders being dispossessed of their lands or sea domains, or deprived of their traditional means of livelihood. Their continuing presence in the Strait is self-evident as are their detailed knowledge of, and exploitation of the marine resources of, the Strait.
As is now well known, native title was first accepted and recognised in relation to the Murray Islands in Torres Strait in the decision of Mabo v Queensland [No 2] (1992) 175 CLR 1. That decision and the twenty-two Consent Determinations since made under the subsequently enacted Native Title Act have resulted in the recognition of native title in all of the presently inhabited islands of interest in this proceeding and in most of the uninhabited islands. Characteristically the native title holders in these Determinations were found to be members of single island communities. In several instances, though, the title is shared by members of several island communities.
Though the land Determinations are of some contextual importance in this proceeding, it is to be emphasised that the present application relates to sea water areas. Because of its present importance, I should emphasise that the NT Act defines “waters” to include not only “sea … a tidal inlet, a bay, an estuary” but also “the bed or subsoil under … any waters” and “the shore, or subsoil under … the shore, between high water and low water”: s 253. The term is used with this meaning in my reasons. It also requires emphasis that, to the Islanders, land and sea are seamlessly and culturally associated: there is no “sea-land dichotomy”.
I have concluded that the Applicant has, for the most part, established its claim. There is a single Torres Strait Islander society to which the native title claim group belongs. Under that society’s traditional laws acknowledged and traditional customs observed, the claim group in aggregate holds native title rights and interests in the waters of Torres Strait with which I am presently concerned, save in those parts specified in my reasons. As the present proceeding does not involve the entirety of the native title claim area, it is inappropriate that I make a finding that the claim group alone constitutes the relevant society. It may be the case – and I express no view on this – that when the balance of the claim is heard and determined in relation to those areas where it overlaps other claims, the evidence may establish that one or both of the Kaurareg and Gudang peoples also belongs to the society for NT Act purposes.
I have rejected the State of Queensland’s contention that there were multiple societies (thirteen in number) each constituted by the Islanders of an inhabited island. I likewise have rejected the Commonwealth’s contention that there were four societies each of which was made up of a regional cluster group of islands, eg the Eastern Islands. There is an irony in all of this. The issue of authorisation apart, the answer to the question of native title rights and interests in the waters of Torres Strait – which is, after all, the concern of the present application and of the NT Act – would in all probability have been largely, if not exactly, the same whether my conclusion had been one, or four, or thirteen, societies.
I have rejected the Applicant’s claim insofar as it asserted that what it called reciprocity based rights and interests constitute native title for the purposes of s 223(1) of the Act. Put inexactly, those are rights based upon reciprocal personal relationships with persons who have native title rights in their own land and marine territories. The native title rights I have found are the non-exclusive rights of the group members of the respective inhabited island communities first, to access, to remain in and to use their own marine territories or territories shared with another, or other, communities; and, secondly; to access resources and to take for any purpose resources in those territories. In exercising these rights the group members are expected to respect their marine territories and what is in them. Importantly, and this requires emphasis, none of these rights confer possession, occupation, or use of the waters to the exclusion of others. Nor do they confer any right to control the conduct of others.
The rights will be recognised by the common law beyond Australia’s territorial seas in its Exclusive Economic Zone. The possibility that native title might exist in such an area was contemplated by the Australian Parliament in s 6 of the NT Act. In the northern part of the claim area known colloquially as the “Top Hat”, the native title rights are qualified by the provisions of Australia’s Treaty with Papua New Guinea which came into effect in 1985. It settled the Seabed Boundary Lines between the two countries and provided for Australian “fisheries jurisdiction” in the “Top Hat”.
I have found that the right to take resources includes the right to take marine resources for trading or commercial purposes and that such use of them would be recognised by the common law. I have rejected the contentions of the State and of the Commonwealth that the ever expanding regulatory controls placed upon commercial fishing by legislation extinguished any native title right to take fish for commercial purposes. Those legislative controls were not directed at the underlying rights of the native title holders who were obliged to comply with the regulatory measures imposed on them if they were to enjoy their native title rights. The various Acts severally or together did not, and do not, evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes in the Part A Claim Area. Having said this, it needs to be emphasised that, to the extent that those legislative regimes regulate the manner in which, and the conditions subject to which, commercial fishing can be conducted in a fishery in the native title holders’ marine estates, or prohibit qualifiedly or absolutely particular activities in relation to commercial fishing in the fishery in those estates, the native title holders must, in enjoying their native title rights, observe the law of the land. This is their obligation as Australian citizens. Complying with those regimes provides them with the opportunity – qualified it may be – to exercise their native title rights.
A distinct part of my reasons deals with the extent to which the construction, operation and maintenance by the Australian Maritime Safety Authority under Commonwealth legislation of aids to navigation in Torres Strait waters have extinguished or otherwise affected the enjoyment of native title in the areas of, or adjacent to, such aids. My conclusions on these matters are contained in my reasons. All I need note here is that, while I have reached conclusions in relation to ten of these aids, I have not in relation to another four. In consequence I have given the parties liberty to apply for the purposes of establishing the boundaries of the areas at each of the four sites where native title has been extinguished.
While I have found that the Application made in this matter was not in fact authorised as required by the Native Title Act, I am satisfied that, for the purposes of s 84D of the Act, it is in the interests of justice that the Application be determined despite the defect in authorisation.
Finally, there are seven PNG parties to this proceeding. In the case of five of them, I will order that they cease to continue as parties to the proceedings. In relation to the remaining two, I will declare that they are not members of the native title claim group.
I have been requested by the parties to provide them with the opportunity to make submissions on the form of the Determination of Native Title to be made. This is entirely appropriate.
I will direct that:
(1)An agreed Draft Determination giving effect to these reasons be filed and served on or before Friday, 23 July 2010;
(2)In default of agreement:
(a)a Draft Determination be filed and served by the Applicant on or before Friday, 23 July 2010; and
(b)the Respondents file and serve such submissions as they may wish to make on or before Friday, 23 July 2010.
(3)The proceeding be adjourned to Brisbane on Friday, 30 July 2010 at 9.30 am for the making of final orders.
FEDERAL COURT OF AUSTRALIA
Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643
Citation: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 Parties: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT ISLANDERS OF THE REGIONAL SEA CLAIM GROUP v STATE OF QUEENSLAND File number: QUD 6040 of 2001 Judge: FINN J Date of judgment: 2 July 2010 Corrigendum: 9 August 2010 Catchwords: NATIVE TITLE – “society” – Torres Strait Island communities – 1, 4 or 13 societies – significance to be attributed to perceptible differences between particular laws and customs acknowledged and observed by the communities.
NATIVE TITLE – sovereignty – sovereignty acquired over different geographical areas at differing times commencing in 1872 – whether sovereignty is over an area or over a person as well – whether new native title rights and interests can be acquired after 1872 in respect of areas not then subject to British sovereignty – whether “sovereign rights” under Seas and Submerged Lands Act 1973 (Cth) to be distinguished from “sovereignty” for Native Title Act purposes.
INTERNATIONAL LAW – status of Exclusive Economic Zone – sovereign rights – whether native title in EEZ able to be recognised – application of Native Title Act 1993 (Cth), s 6.
NATIVE TITLE – rights and interests – reciprocity based rights founded on a relationship to a person – whether content of rights include a right or interest “in relation to land or waters”: s 223(1), NT Act.
NATIVE TITLE – extent of determination area – criteria for determining “boundaries” of several marine estates – whether gaps between, or unused areas – “connection” to waters.
NATIVE TITLE – extent of determination area – definition of outer boundaries of the claim area – whether native title proved in whole area – whether connection to all of marine estate established.
NATIVE TITLE – recognition of right to take marine resources for commercial purposes – whether recognised – “water” – right to take recognised.
NATIVE TITLE – extinguishment – right to take marine resources for commercial purposes – 130 years of legislation controlling commercial fishing – whether simply regulatory in character or prohibitory.
STATUTORY INTERPRETATION – construction of legislation claimed to abrogate native title rights – requirement of a clear and plain intention so to do.
NATIVE TITLE – extinguishment – “public work” and “adjacent waters” – area necessary for, or incidental to, operation and maintenance of aids to navigation – NT Act, s 253 and s 251D.
FIXTURES – NT Act, s 253 – “fixture” – aids to navigation attached to the seabed – criteria for determining fixtures in NT Act settings.
NATIVE TITLE – Future act/non-extinguishment principle – s 24NA future act in off-shore place – periodic maintenance of aids to navigation – whether access for maintenance a distinct future act or part of a future act that subsists for the life of the aid – s 238, NT Act.
NATIVE TITLE – consent land determinations – significance of as a judgment in rem.
NATIVE TITLE – determination application – not authorised as required by s 61 and s 251B – whether, despite defect in authorisation, it is in the interests of justice for application to be determined – further authorisation not required.
NATIVE TITLE – parties – Papua New Guinea parties – joined because interests might be affected by a determination: s 84(5), NT Act – exclusive rights no longer claimed by Applicant – whether PNG parties no longer had the “requisite interest” – order under s 84(8) that they cease to be parties.
Legislation: Native Title Act 1993 (Cth) ss 6, 10, 13, 23B, 23C, 24KA, 24NA, 61, 61A, 62, 66, 67, 68, 81, 84, 84D, 87, 94A, 190C, 203B, 203BE, 211, 213, 223, 225, 227, 237A, 238, 251B, 251D, 253, Div 3 of Part 2, Div 2B of Part 2
Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld)
Torres Strait Islanders Act of 1939 (Qld)
Evidence Act 1995 (Cth) ss 74, 78, 79, 135, 144
Torres Strait Fisheries Act 1984 (Cth) ss 3, 4, 5, 7, 8, 14, 15, 15A, 16, 17, 19, 20, 31, 45, Part III, Part IV, Part V
Seas and Submerged Lands Act 1973 (Cth) ss 3, 6, 10A, 10B
Acts Interpretation Act 1901 (Cth) s 15B
Fisheries Act 1952 (Cth) ss 4, 5AA, 5B, 7, 7A, 8, 9, 12D, 12H, 12J, 12K 12M, 12P, 13, Part IVA
Queensland Fisheries Act 1877 ss 2, 8, 11, 12
Pearl-shell and Bêche-de-mer Fishery Act 1881 (Qld) ss 1, 3, 4, 5, 6, 11, 13, 16, 16A
The Queensland Pearl Shell and Bêche-de-Mer Fisheries (Extra-territorial) Act of 1888
Oyster Act 1886 (Qld) ss 5, 11, 12, 15, 18, 19
Fish and Oyster Act 1914 (Qld) ss 4, 7, 8, 9, 16, 17, 18
Fish and Oyster Acts Amendment Act 1955 (Qld) ss 4, 5, 6
Whaling Acts 1935-1936 (Qld) ss 6, 7
Fisheries Act 1957 (Qld) ss 3, 6, 11, 12, 14, 16, 17, 18, 19, 20, Part III, Part IV, Part V
Fisheries Act 1976 (Qld) ss 5, 6, 7, 11, 12, 21, 22, 23, 36H, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51, 53, 54, 55 Part IVA, Part VIII
Fisheries Act 1994 (Qld) ss 3, 3A, 11, 14, 36, 37, 38, 43, 44, 78, 79, 132, Part 6, Part 7
Fisheries Management Act 1991 (Cth) ss 3, 4, 5, 9, 10, 17, 21, 32, 76, 78, 95, Part 5
Whaling Act 1935 (Cth)
Whale Protection Act 1980 (Cth)
Pearl Fisheries Act 1952 (Cth) s 8
Pearl Fisheries Act (No 2) 1953 (Cth)
Fisheries Act 1968 (Cth)
Continental Shelf (Living Natural Resources) Act 1968 (Cth) ss 7, 11, 15
Fisheries Amendment Act 1980 (Cth)
Fisheries Act Amendment Act 1981 (Qld)
Fisheries Administration Act 1991 (Cth) Part 2
Australian Maritime Safety Authority Act 1990 (Cth) ss 2A, 7, 31
Lighthouses Act 1911 (Cth) ss 7, 8, 10, 19
Coastal Waters (State Title) Act 1980 (Cth) ss 4, 5
Torres Strait Fisheries Act 1984 (Qld)
Transport Operations (Marine Safety) Act 1994 (Qld)Federal Court Rules O 34A
Fisheries Regulations 1954 (Cth)
Torres Strait Fisheries Regulations 1985 (Cth) regs 10, 11
Fisheries Regulation 2008 (Qld)
Transport Operations (Marine Safety) Regulation 2004 (Qld)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 18 December 1978. ATS 1985 no 4 (entered into force 15 February 1985) Arts 1, 2, 3, 4, 9, 10
United Nations Convention on the Law of the Sea. Opened for signature 10 December 1982. 1833 UNTS 3 (entered into force 16 November 1994) Arts 2, 3, 4, 17-26, 55, 56, 57, 58, 59, 61, 62, 69, 70, 73, 77, 87, 287, Part VI, Part VII
Convention on the High Seas. Opened for signature 29 April 1958. 450 UNTS 11 (entered into force 30 September 1962) Art 2
Convention on the Continental Shelf. Opened for signature 29 April 1958. 499 UNTS 311 (entered into force 10 June 1964)Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth)
Explanatory Memorandum, Native Title Bill 1993 (Cth)
Queensland, Parliamentary Debates, Legislative Assembly, 24 November 1981, 3875
Commonwealth, Parliamentary Debates, House of Representatives, 21 November 1968, 3136
Commonwealth, Parliamentary Debates, House of Representatives, 19 October 1983, 1902-1903
Explanatory Memorandum, Native Title Amendment (Technical Amendments) Bill 2007 (Cth)Cases cited: Mabo v Queensland [No 2] (1992) 175 CLR 1 applied
Wacando v Commonwealth (1981) 148 CLR 1 cited
Commonwealth v Yarmirr (2001) 208 CLR 1 applied
Gamogab v Akiba (2007) 159 FCR 578 cited
Gumana v Northern Territory (2007) 158 FCR 349 applied
Members of Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 applied
Western Australia v Ward (2002) 213 CLR 1 applied
Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424 cited
Alyawarr, Kaytetye, Warumungui, Wakay Native Title Claim Group v Northern Territory [2004] FCA 472 cited
Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 cited
Sampi v Western Australia [2005] FCA 777 cited
Gumana v Northern Territory (2004) 141 FCR 457 cited
Neowarra v Western Australia [2003] FCA 1402 followed
Bodney v Bennell (2008) 167 FCR 84 applied
Jones v Dunkel (1958) 101 CLR 298 cited
Packer v Cameron (1989) 54 SASR 246 cited
O’Donnell v Reichard [1975] VR 916 cited
Yarmirr v Northern Territory (1998) 82 FCR 533 cited
Warria v Queensland [2004] FCA 1572 cited
Lota Warria v Queensland [2005] FCA 1117 cited
Thaiday v Queensland [2005] FCA 1116 cited
Nona and Manas v Queensland [2006] FCA 412 cited
Nona v Queensland [2005] FCA 1118 cited
Munn v Queensland (2001) 115 FCR 109 followed
Quall v Northern Territory of Australia (2009) 180 FCR 528 cited
Kokatha People v South Australia [2007] FCA 1057 cited
The Wik Peoples v Queensland (1994) 49 FCR 1 cited
Western Australia v Ward (2000) 99 FCR 316 applied
Northern Territory v Alyawarr (2005) 145 FCR 442 applied
Sampi v Western Australia [2010] FCAFC 26 applied
De Rose v South Australia (No 2) (2005) 145 FCR 290 followed
Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 cited
The Lardil Peoples v Queensland [2004] FCA 298 cited
Mye v Queensland [2004] FCA 1573 cited
Stephen v Queensland [2004] FCA 1574 cited
Aruli v Mitchell, SC of WA, Full Court, 31 March 1999 (unreported) cited
Western Australia v Commonwealth (1994) 183 CLR 373 cited
New South Wales v Commonwealth (1975) 135 CLR 337 cited
Fejo v Northern Territory (1998) 195 CLR 96 cited
Yanner v Eaton (1999) 201 CLR 351 applied
Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 cited
Commonwealth v Yarmirr (2000) 101 FCR 171 cited
Daniel v Western Australia [2003] FCA 666 cited
Corporation of Saltash v Goodman (1881) 7 QBD 106 cited
Goodman v Mayor of Saltash (1882) 7 App Cas 633 cited
Race v Ward (1855) 4 El & Bl 702; (1855) 119 ER 259 cited
Embrey v Owen (1851) 6 Ex 353; (1851) 155 ER 579 cited
Attorney-General, ex rel Yorkshire Derwent Trust Ltd v Brotherton [1992] 1 AC 425 cited
Mabo v Queensland [No 1] (1988) 166 CLR 186 cited
Wik Peoples v Queensland (1996) 187 CLR 1 applied
Evans v New South Wales (2008) 168 FCR 576 followed
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied
Haida Nation v British Columbia (Minister of Forests) (2004) 245 DLR (4th) 33 cited
Toomer v Witsell 334 US 385 (1948) cited
Harper v Minister for Sea Fisheries (1989) 168 CLR 314 cited
Illinois Central Railroad Co v People of the State of Illinois 146 US 387 (1892) cited
M C Mehta v Kamal Nath (1997) 1 SCC 388 cited
Bonser v La Macchia (1969) 122 CLR 177 cited
R v Sparrow (1990) 70 DLR (4th) 385 cited
Ward v Cresswell (1741) Willes 265; 125 ER 1165 cited
The Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 cited
Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 cited
National Australia Bank Ltd v Blacker (2000) 104 FCR 288 cited
N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 cited
Metal Manufactures Ltd v Federal Commissioner of Taxation (2000) 43 ATR 375 cited
Anthony v Commonwealth (1973) 47 ALJR 83 cited
Holland v Hodgson (1872) LR7CP 328 cited
Masig People v Queensland [2000] FCA 1067 cited
King v Northern Territory of Australia [2007] FCA 1498 cited
Lardil Peoples v Queensland (2001) 108 FCR 453 cited
Reid v South Australia [2007] FCA 1479 cited
Ashwin v Western Australia [2010] FCA 206 cited
Northern Territory v Doepel (2003) 133 FCR 112 cited
Griffiths v Northern Territory (2007) 165 FCR 391 cited
Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 cited
Akiba v Queensland (No 2) (2006) 154 FCR 513 citedSpencer Bower, Turner and Handley, Res Judicata (3rd ed, 1996)
2 Smith’s Leading Cases 776 (12th ed, 1915)
Professor H.L.A. Hart, in The Concept of Law (OUP New York, 1994)
Shorter Oxford English Dictionary (5th ed, 2002)
Macquarie Dictionary (4th ed, 2005)
Gray and Gray, Elements of Land Law (5th ed, Oxford, 2009)
Churchill and Lowe, The Law of the Sea (3rd ed, 1999)
Evans, “The Law of the Sea” in Evans (ed) International Law, Ch 20 (Oxford 2003)
Brownlie, Principles of Public International Law (7th ed, Oxford, 2008)
Triggs, International Law (Lexis Nexis Butterworths, 2006)
Attard, The Exclusive Economic Zone in International Law (Oxford, 1987)
Gavouneli, Functional Jurisdiction in the Law of the Sea (Martinus Nijhoff, 2007)
Anderson, Modern Law of the Sea (Martinus Nijhoff, 2008)
Freestone, Barnes and Ong (eds), The Law of the Sea: Progress and Prospects (Oxford, 2006)
Bonyhady, The Law of the Countryside (Professional Books,1987)
Michael White, Australia Offshore Areas (Federation Press, 2009)
Halsbury’s Laws of England, vol 14, “Fisheries” 1269 (1st ed, 1910)
Peter Butt, Land Law (5th ed, Thomson Reuters, 2010)Date of hearing: 26-29 September 2007, 1-6 October 2007, 8-10 October 2007, 29-30 September 2008, 1 October 2008, 13-17 October 2008, 27-30 October 2008, 3-6 November 2008, 1 December 2008, 16-20 February 2009, 23-27 February 2009, 2-3 March 2009, 8 May 2009, 20-24 July 2009. Date of last submissions: 14 May 2010 Places: Cairns (Heard in Boigu, Mua, Badu, Saibai, Mer, Erub, Poruma and Brisbane) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 1003 Counsel for the Applicants: Mr R Blowes SC with Mr R Keely and Ms T Keely Solicitor for the Applicants: Torres Strait Regional Authority Counsel for the State of Queensland:: Mr G Hiley QC with Mr J Waters SC and Ms H Bowskill Solicitor for the State of Queensland: Queensland Crown Solicitor Counsel for the Commonwealth of Australia: Ms R Webb QC Solicitor for the Commonwealth of Australia: Australian Government Solicitor Counsel for the Commercial Fishing Parties: Mr P Gore Solicitor for the Commercial Fishing Parties: Gore & Associates Counsel for Mr P Gamogab: Mr D O’Gorman SC (Pro Bono) Solicitor for Mr P Gamogab: Fisher Dore Lawyers Counsel for Mr P Sawabarri: Mr D O’Gorman SC (Pro Bono) Solicitors for Mr P Sawabarri: Preston Law Counsel for Mr K Songoro: Mr Songoro appeared in person. Counsel for Naga Bewani Resources Association: Ms U Ame, appeared on behalf of the Naga Bewani Resources Association
FEDERAL COURT OF AUSTRALIA
Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643
CORRIGENDUM
1.In the Appearances on the cover page, in Counsel for the Applicants, delete “Mr R Keely and Ms T Keely” and replace with “Ms A Keely and Mr T Keely”.
2.In the Appearances on the cover page, in Counsel for Mr P Gamogab, delete “(Pro Bono)” after Mr D O’Gorman SC.
3.In the Appearances on the cover page, in Counsel for Mr P Sawabarri, delete “(Pro Bono)” after Mr D O’Gorman SC.
4.At the top of the Orders and First Reasons pages, under “QUEENSLAND DISTRICT REGISTRY” insert “GENERAL DIVISION”.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Finn. Associate:
Dated: 9 August 2010
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 6040 of 2001
BETWEEN: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT ISLANDERS OF THE REGIONAL SEAS CLAIM GROUP
Applicants
AND: STATE OF QUEENSLAND & OTHERS
Respondents
JUDGE:
FINN J
DATE OF ORDER:
2 JULY 2010
WHERE MADE:
CAIRNS
THE COURT DIRECTS THAT:
1.An agreed Draft Determination giving effect to these reasons be filed and served on or before Friday, 23 July 2010;
2.In default of agreement:
(a)a Draft Determination be filed and served by the Applicant on or before Friday, 23 July 2010; and
(b)the Respondents file and serve such submissions as they may wish to make on or before Friday, 23 July 2010.
(3)The proceeding be adjourned to Brisbane on Friday, 30 July 2010 at 9.30 am for the making of final orders.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 6040 of 2001
BETWEEN: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT ISLANDERS OF THE REGIONAL SEAS CLAIM GROUP[
Applicants
AND: STATE OF QUEENSLAND & OTHERS
Respondents
JUDGE:
FINN J
DATE:
2 JULY 2010
PLACE:
CAIRNS
TABLE OF CONTENTS
1. A BRIEF SKETCH OF TORRES STRAIT........ ........ ........ ........ ........ ........ ........ ......
[17]
(i) The geography........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[18]
(ii) The People........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[23]
2. THE APPLICATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[51]
(i) Procedural Background........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[51]
(ii) The Applicant........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[54]
(iii) The Claim Area........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[59]
(iv) The Rights and Interests Claimed........ ........ ........ ........ ........ ........ ........ ........ .....
[64]
(v) The Applicant’s “Customary Marine Tenure Model”........ ........ ........ ........ ....
[68]
A Digression on Language and Precision........ ........ ........ ........ ........ ........ ........ ....
[72]
3. THE CONCESSIONS OF THE STATE AND THE COMMONWEALTH........ ..
[77]
(i) The State’s Concession........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[78]
(ii) The Commonwealth’s Concession........ ........ ........ ........ ........ ........ ........ ........ .....
[82]
4. THE STATUTORY SETTING: MAKING A DETERMINATION OF NATIVE TITLE
[88]
5. THE EVIDENCE AND WITNESSES........ ........ ........ ........ ........ ........ ........ ........ ........
[95]
(i) The Primary Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[96]
(ii) The Cambridge Expedition........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[104]
(iii) The Expert Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[110]
(a) The Applicant’s Experts........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[110]
(b) The Respondents’ Experts........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[121]
The Commonwealth........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[121]
The State........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[123]
(iv) The Conference of Experts........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[129]
(v) Johannes and MacFarlane........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[134]
6. THE NATIVE TITLE LAND DETERMINATIONS AND THE UNRESOLVED ISLAND CLAIMS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[146]
(i) The Land Determinations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[147]
(ii) The Two Unresolved Land Claims........ ........ ........ ........ ........ ........ ........ ........ ....
[160]
7. THE SOCIETY ISSUE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[162]
Applicable Legal Principles........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[162]
Societies or Society........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[175]
The Laws and Customs........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[177]
(i) Descent........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[182]
(ii) Reciprocity and Exchange........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[185]
(a) An Informing Principle........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[186]
(b) Adoptions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[196]
(c) Kinship........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[202]
(d) Marriage and Affinal Relationships........ ........ ........ ........ ........ ........ ........ ........ .....
[215]
(e) Hereditary Friendships and “Trading” Relationships........ ........ ........ ........ ........ .
[223]
(f) Trading “rights”........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[233]
(g) “Ailan Pasin”: “Gud Pasin”........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[238]
(iii) Emplacement of Social Identity by Original Occupation and Subsequent Inheritance........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[243]
Shared Areas........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[261]
(iv) Territorial Control and the Right to Livelihood........ ........ ........ ........ ........ ........ .
[279]
(a) Territorial Control........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[281]
(b) Livelihood........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[287]
(c) Permission........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[295]
(v) Elders........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[302]
(vi) Life Stages, Celebrations and Feasts; Funeral and Mortuary Rites; Songs, Dances and Games........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[310]
(a) Life Stages, Celebrations and Feasts........ ........ ........ ........ ........ ........ ........ ........ ....
[311]
(b) Funeral and Mortuary Rites........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[315]
(c) Song, Dance and Games........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[317]
(d) A Cautionary Note........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[319]
(vii) Totems and Clans........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[320]
(a) Totemism across Torres Strait........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[326]
(b) A totemic system or systems........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[331]
(viii) Other Laws and Customs........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[358]
Contextual Matters........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[368]
(i) “Social ‘levels of scale’”........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[370]
(ii) Marine Orientation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[373]
(iii) Language........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[381]
(iv) Receptiveness to Innovation and Change........ ........ ........ ........ ........ ........ ........ ...
[390]
(v) Cosmology, Mythology and Religion and Sorcery........ ........ ........ ........ ........ .....
[392]
(vi) The Central Islanders........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[398]
Professor Beckett’s change of opinion........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[408]
(vii) Identity........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[412]
(viii) The Two Unresolved Land Claims........ ........ ........ ........ ........ ........ ........ ........ ......
[417]
(a) Zuizin (Halfway Island)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[418]
(b) Naghir........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[420]
(c) Other matters........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[431]
(ix) Intra-mural allocation of rights........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[432]
Society: Contentions and Conclusions........ ........ ........ ........ ........ ........ ........ ........ ......
[441]
(i) The NT Act and the splitting of the sea claim........ ........ ........ ........ ........ ........ ....
[449]
(ii) Reciprocity-Based Rights........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[452]
(iii) Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[453]
(a) Mere difference or operative distinction?........ ........ ........ ........ ........ ........ ........ ....
[453]
(b) The Laws and Customs........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[457]
(c) Contextual material........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[465]
(d) Closely related islands and cluster groups........ ........ ........ ........ ........ ........ ........ ...
[475]
(e) Haddon’s East-Central/Western division........ ........ ........ ........ ........ ........ ........ .....
[479]
(iv) Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[488]
8. THE RIGHTS ISSUE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[493]
Applicable legal principles: NT Act, s 223(1)........ ........ ........ ........ ........ ........ ........ ...
[495]
(i) Reciprocity based rights........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[503]
(ii) The claimed rights and interests........ ........ ........ ........ ........ ........ ........ ........ ........ .
[511]
(a) The rights to enter and remain and to use and enjoy........ ........ ........ ........ ........ ...
[519]
(b) The rights to access resources, to take the resources and to a livelihood based upon accessing and taking resources........ ........ ........ ........ ........ ........ ........ ........ ...
[523]
(c) The rights “to protect resources”, “to protect the habitat of resources” and “to protect places of importance”........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[531]
(iii) Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[540]
Communal, group or individual rights?........ ........ ........ ........ ........ ........ ........ ........ ....
[541]
9. THE GEOGRAPHY ISSUE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[544]
Connection: Applicable Legal Principles........ ........ ........ ........ ........ ........ ........ ........ ....
[546]
(i) Geography: Contextual material........ ........ ........ ........ ........ ........ ........ ........ ......
[553]
(a) The Historical record........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[553]
(b) Company/Family boats........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[557]
(c) Islander boats and boating........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[566]
(ii) The Expert evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[568]
(iii) Islander Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[588]
(a) The evidence of Kris Billy........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[591]
(b) The Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[594]
(c) Identifying “owned” landmarks........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[603]
(d) Using “landmarks” to identify marine territory........ ........ ........ ........ ........ ........ ..
[616]
(e) Further evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[623]
(f) Changes in use of marine estates......... ........ ........ ........ ........ ........ ........ ........ ........ .
[629]
(g) “The horizon of visibility”........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[631]
(h) “The parties’ maps”........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[632]
(iv) Conclusions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[635]
“Continuity”
[657]
(v) The Extremities of the Claim Area........ ........ ........ ........ ........ ........ ........ ........ ...
[659]
(a) The north-eastern areas........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[661]
(b) The Eastern areas........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[665]
(c) South of Naghir/Warraber........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[668]
(d) The South-western areas........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[673]
(e) The Western areas........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[678]
(f) The Northern areas........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[684]
10. THE SOVEREIGNTY ISSUE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[686]
(i) Context........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[686]
(ii) The Legislative Setting........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[690]
(iii) The Issues........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[703]
(iv) Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[706]
(a) The Territorial seas limitation........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[706]
(b) Progressive Sovereignty and the creation of new native title rights........ ........ ....
[732]
11. NON-RECOGNITION OF RIGHTS AND INTERESTS........ ........ ........ ........ ........
[742]
(i) Applicable legal principles: “Recognition”........ ........ ........ ........ ........ ........ .....
[743]
(ii) The areas of contention........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[748]
(a) Taking for trading or commercial purposes........ ........ ........ ........ ........ ........ ........ .
[751]
(b) “Waters”........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[758]
(c) Protect rights........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[761]
12. EXTINGUISHMENT........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[763]
(i) Applicable legal principles: Extinguishment........ ........ ........ ........ ........ ........ ..
[766]
(ii) The statutory context........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[779]
(a) The Queensland legislation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[780]
(b) The Commonwealth’s legislation........ ........ ........ ........ ........ ........ ........ ........ ........ .
[805]
Fisheries Act 1952 (Cth) and Pearl Fisheries Act 1952 (Cth)........ ........ ........ .....
[807]
The Continental Shelf (Living Natural Resources) Act 1968 (Cth)........ ........ ......
[815]
The Fisheries Management Act 1991 (Cth)........ ........ ........ ........ ........ ........ ........ ..
[817]
The Torres Strait Fisheries Act 1984 (Cth)........ ........ ........ ........ ........ ........ ........ ..
[828]
Consideration
[843]
Conclusion
[861]
13. PAST EXTINGUISHMENT AND PUBLIC WORKS; FUTURE ACTS AND NON-EXTINGUISHMENT........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
[862]
Statutory Context........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[864]
(i) The Australian Maritime Safety Authority Act 1990 (Cth)........ ........ ........ ........
[864]
(ii) The Lighthouses Act 1911 (Cth)........ ........ ........ ........ ........ ........ ........ ........ ........ .
[865]
(iii) The Coastal Waters (State Title) Act 1980 (Cth)........ ........ ........ ........ ........ ........
[867]
(iv) The NT Act: Pre-December 1996........ ........ ........ ........ ........ ........ ........ ........ .......
[869]
(a) The “fixtures” requirement........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[873]
(b) Native title in the pre 23 December 1996 adjacent/affected areas........ ........ ......
[885]
(v) NT Act: Post December 1996........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[901]
(a) Native title in the affected areas........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[906]
14. AUTHORISATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[913]
(i) The Statutory Setting........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[913]
(ii) The Present Application........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[919]
(iii) Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[926]
15. OTHER INTERESTS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[934]
A. International law........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
[935]
B. Common law........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[937]
C. Fisheries legislation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
[940]
D. Transport legislation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[942]
E. Other statutory grants........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[944]
F. Access to perform statutory or common law duties........ ........ ........ ........ ........ ......
[946]
G. State and Commonwealth laws........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[948]
H. AMSA rights and interests........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[949]
I. PNG interests and the PNG Treaty........ ........ ........ ........ ........ ........ ........ ........ ......
[951]
16. THE PNG PARTIES AND THE PNG EVIDENCE........ ........ ........ ........ ........ ........ .
[952]
The PNG parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...
[954]
(i) Section 84(8) of the NT Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
[957]
(ii) Pende Gamogab and Peter Niwia Sawabarri........ ........ ........ ........ ........ ........ .....
[962]
(iii) Naga Bewani Resources Association........ ........ ........ ........ ........ ........ ........ ........ ..
[968]
(iv) Robinson Gibuma and Frank Warapa........ ........ ........ ........ ........ ........ ........ .......
[970]
(v) The Songoro Family........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....
[971]
(vi) The Gamia Family........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......
[986]
The PNG Evidence and the Murphy Treaty Report........ ........ ........ ........ ........ ........
[987]
The Murphy Treaty Report........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
[988]
17. ORDERS
[1002]
REASONS FOR JUDGMENT
1 For Native Title Act purposes, Torres Strait and the Torres Strait Islanders are distinctive in many respects. That this is so, and the consequences of it, will become markedly apparent in what follows.
2 The subject matter of the present proceeding is itself distinctive. It seeks a determination of native title rights and interests in a major part of the sea area of Torres Strait. The sea in turn is the integral presence in the lives and livelihoods of the Islander communities. It has rightly been said that their occupation of the region has had “an essentially maritime character”.
3 Unlike in native title claims in Aboriginal Australia, the laws and customs advanced by the communities do not reflect an overarching spiritual connection with the waters. There is no creation story. Yet there are still some, for the most part minor, traditional spiritual beliefs revealed in the evidence. In consequence the laws and customs of present concern are informed in quite some degree by considerations of utility and practicality. This has unusual ramifications in the application of accepted Native Title Act jurisprudence. No more is this so than in relation to the “connection” requirement of s 223(1)(b) of the Native Title Act 1993 (Cth).
4 The Applicant’s evidence is likewise distinctive. British and then Australian sovereignty over the islands of Torres Strait was acquired for the most part in progressive steps taken, first, in 1872 and then in 1879. By these dates the grandparents of some of the indigenous witnesses were alive and were directly, or via the witness’ parents, the sources of oral traditions recounted by those witnesses. From the time of Luis Baez de Torres’ passage through the Strait in 1606, Islander contact with Europeans was the subject of recorded account and observation. Notable amongst these after Cook’s rediscovery of Torres Strait were the writings of British naval officers and other mariners.
5 In 1864 a joint Imperial-colonial outpost was established at Somerset on the eastern tip of Cape York. At much the same time colonial occupation commenced in the Strait. It related initially to the establishment of bêche-de-mer shore fishing stations. In 1868 the pearl shell industry commenced. In 1871 the evangelisation of the Strait began with the advent of the London Missionary Society. In consequence a significant pre- and early sovereignty literature was generated and is in evidence. The most significant body of works in this are the six volumes of reports of the Cambridge Anthropological Expedition to Torres Strait. These were based largely on observations made in the Strait in 1898 by A.C. Haddon (a former zoologist) and six others. The main purpose of the Expedition was to assemble a picture of life before colonisation from the memories of the older men.
6 Unlike with so much of Aboriginal Australia, the acquisition of sovereignty over the islands of the Strait did not lead to the Islanders being dispossessed of their lands or sea domains, or deprived of their traditional means of livelihood. Their continuing presence in the Strait is self-evident as are their detailed knowledge of, and exploitation of the marine resources of, the Strait.
7 As is now well known, native title was first accepted and recognised in relation to the Murray Islands in Torres Strait in the decision of Mabo v Queensland [No 2] (1992) 175 CLR 1 (“Mabo [No 2]”). That decision and the twenty-two Consent Determinations since made under the subsequently enacted Native Title Act have resulted in the recognition of native title in all of the presently inhabited islands of interest in this proceeding and in most of the uninhabited islands. Characteristically the native title holders in these Determinations were found to be members of single island communities. In several instances, though, the title is shared by members of several island communities.
8 Though the land Determinations are of some contextual importance in this proceeding, it is to be emphasised that the present application relates to sea water areas. Because of its present importance, I should emphasise that the NT Act defines “waters” to include not only “sea … a tidal inlet, a bay, an estuary” but also “the bed or subsoil under … any waters” and “the shore, or subsoil under … the shore, between high water and low water”: s 253 (emphasis added). The term is used with this meaning in these reasons. It also requires emphasis that, to the Islanders, land and sea are seamlessly and culturally associated: there is no “sea-land dichotomy”: cf Hviding, 1996.
9 I have concluded that the Applicant has, for the most part, established its claim. There is a single Torres Strait Islander society to which the native title claim group belongs. Under that society’s traditional laws acknowledged and traditional customs observed, the claim group in aggregate holds native title rights and interests in the waters of Torres Strait, with which I am presently concerned, save in those parts specified in these reasons. As the present proceeding does not involve the entirety of the native title claim area, it is inappropriate that I make a finding that the claim group alone constitutes the relevant society. It may be the case – and I express no view on this – that when the balance of the claim is heard and determined in relation to those areas where it overlaps other claims, the evidence may establish that one or both of the Kaurareg and Gudang peoples also belongs to the society for NT Act purposes.
10 I have rejected the State of Queensland’s contention that there were multiple societies (thirteen in number) each constituted by the Islanders of an inhabited island. I likewise have rejected the Commonwealth’s contention that there were four societies each of which was made up of a regional cluster group of islands, eg the Eastern Islands. There is an irony in all of this. The issue of authorisation apart, the answer to the question of native title rights and interests in the waters of Torres Strait – which is, after all, the concern of the present application and of the NT Act – would in all probability have been largely the same whether my conclusion had been one, or four, or thirteen, societies.
11 I have rejected the Applicant’s claim insofar as it asserted that what it called reciprocity based rights and interests constitute native title for the purposes of s 223(1) of the Act. Put inexactly, those are rights based upon reciprocal personal relationships with persons who have native title rights in their own land and marine territories. The native title rights I have found are the non-exclusive rights of the group members of the respective inhabited island communities first, to access, to remain in and to use their own marine territories or territories shared with another, or other, communities; and, secondly; to access resources and to take for any purpose resources in those territories. In exercising these rights the group members are expected to respect their marine territories and what is in them. Importantly, and this requires emphasis, none of these rights confer possession, occupation, or use of the waters to the exclusion of others. Nor do they confer any right to control the conduct of others.
12 The rights will be recognised by the common law beyond Australia’s territorial seas in its Exclusive Economic Zone. The possibility that native title might exist in such an area was contemplated by the Australian Parliament in s 6 of the NT Act. In the northern part of the claim area known colloquially as the “Top Hat”, the native title rights are qualified by the provisions of Australia’s Treaty with Papua New Guinea which came into effect in 1985. It settled the Seabed Boundary Lines between the two countries and provided for Australian “fisheries jurisdiction” in the “Top Hat”.
13 I have found that the right to take resources includes the right to take marine resources for trading or commercial purposes and that such use of them would be recognised by the common law. I have rejected the contentions of the State and of the Commonwealth that the ever expanding regulatory controls placed upon commercial fishing by legislation extinguished any native title right to take fish for commercial purposes. Those legislative controls were not directed at the underlying rights of the native title holders who were obliged to comply with the regulatory measures imposed on them if they were to enjoy their native title rights. The various Acts severally or together did not, and do not, evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes in the Part A Claim Area. Having said this, it needs to be emphasised that, to the extent that those legislative regimes regulate the manner in which, and the conditions subject to which, commercial fishing can be conducted in a fishery in the native title holders’ marine estates, or prohibits qualifiedly or absolutely particular activities in relation to commercial fishing in the fishery in those estates, the native title holders must, in enjoying their native title rights, observe the law of the land. This is their obligation as Australian citizens. Complying with those regimes provides them with the opportunity – qualified it may be – to exercise their native title rights.
14 A distinct part of my reasons deals with the extent to which the construction, operation and maintenance by the Australian Maritime Safety Authority under Commonwealth legislation of aids to navigation in Torres Strait waters have extinguished or otherwise affected the enjoyment of native title in the areas of, or adjacent to, such aids. My conclusions on these matters are contained in these reasons. All I need note here is that, while I have reached conclusions in relation to ten of these aids, I have not in relation to another four. In consequence I have given the parties liberty to apply for the purposes of establishing the boundaries of the areas at each of the four sites where native title has been extinguished.
15 While I have found that the Application made in this matter was not in fact authorised as required by the Native Title Act, I am satisfied that, for the purposes of s 84D of the Act, it is in the interests of justice that the Application be determined despite the defect in authorisation.
16 Finally, there are seven PNG parties to this proceeding. In the case of five of them, I have ordered that they cease to continue as parties to the proceedings. In relation to the remaining two, I will declare that they are not members of the native title claim group.
1. A BRIEF SKETCH OF TORRES STRAIT
17 To understand the issues and emphases in this matter, it is necessary to have some appreciation of the geography of the Strait and of the characteristics and distribution of the Islanders who have lived, and who currently live, there. I should note at the outset that I will refer to the islands by their Islander name. Attachment 1 to these reasons is a table of Islander and English names for islands, islets, cays and reefs. For convenience in exposition, I will not differentiate between colonial Papua and modern Papua New Guinea (“PNG”). I will use the occasionally anachronistic acronym PNG to refer to both. Finally, to minimise the need to make lengthy references in the text to the details of source materials – mainly the reports of experts and the tendered scholarly writings of historians, anthropologists, etc – I have adopted an abbreviated form of social science citation which will refer only to the author’s name, the year of the publication and the page reference. If the same author has several publications/reports for the same year, these will be differentiated alphabetically (eg Beckett 2008A, 2008B etc). Attachment 2 contains a full bibliography of the experts and authors to whom reference has been made.
(i) The geography
18 The wide, plateau-like, land bridge between Australia and PNG was almost entirely inundated by rising sea levels between 6,000 and 9,000 years ago. The rocky islands which characterise the western and eastern islands of the Strait once were hills on the bridge. The sea-bed after inundation was relatively flat and shallow ranging from about 30-50 metres in depth in the east and 10-15 metres in the west (now the eastern and western continental shelves) to about 10 metres across the centre. Seasonal and daily fluctuations in wind, rain, tide and current create, as the geographer Nietschmann observed (1985, 134-135), “a kaleidoscopic variety of environmental conditions”. For the Islanders, in consequence, “[s]ea knowledge and sea territory are reciprocals”. The conditions, moreover, are often treacherous. Matthew Flinders observed in A Voyage to Terra Australis, (1814): “[P]erhaps no space of 3½ degrees in length represents more dangers than Torres Strait.” To illustrate this by reference simply to the tides, Nietschmann observed (1989, 67-68):
Torres Strait is a 150-km wide vortex between the Indian and Pacific oceans. Strong tidal currents sweep through the Strait, causing the sea level to fluctuate daily and alternatingly exposing and covering island margins and shallow reefs. Tidal influence is accentuated due to the shallow shelf and the funneling effects of the bordering mainlands and the further constrictions of reef and island. Tidal currents are exceptionally strong due to the vortex-caused acceleration of moving tides. Current speed averages two to three knots, but during spring tides and in the reef channels the tidal current may exceed seven knots. The tidal current changes direction every six hours; twice daily the current is from the west, and twice daily it is from the east.
19 The islands – over 120 in number – are dispersed, in the main, in a broad arc beginning immediately to the west of the tip of Cape York, running north to the PNG coastline and then south easterly to the northern end of the Barrier Reef. Coral reefs and sand cays abound, particularly to the north and more distantly, to the north-east of Cape York. To provide some appreciation of the dimensions of the Strait, the distance between Cape York and the southern PNG coastline is 165 kilometres; and that between the easternmost and westernmost inhabited islands (Mer and Badu) is 215 kilometres.
20 Of the islands themselves, there are four distinct geomorphological types. They have markedly different ecological conditions, hence potential for human habitation and utilisation. The western group of islands contains the largest islands in the Strait. They are constituted by granite and volcanic rock dating back 300 million years and are a geological extension of Cape York. Though relatively infertile, they could sustain limited gardening for food. Marine life – turtle, dugong, fish and shell fish – is abundant on the reefs which surround the islands or which are accessible by boats (previously canoes: see below). The second island group is opposite the PNG coastline. Two of the three islands, Boigu and Saibai, are formed of the accumulated sediments brought down from nearby PNG rivers. Both have large areas of swamps and extensive mangrove areas which contain significant marine life as also waterfowl. Boigu is prone to flooding by sea water and has little arable land. Seagrass beds, which provide the main food eaten by dugongs lie close to both of the mud islands. The third island of this group, Dauan, is a high, rocky, remnant of the landbridge. It has only a small arable area but a permanent fresh water supply which the people from its near neighbour, Saibai, used during dry seasons. Its permanent population has been characteristically small.
21 The third island group, the eastern islands, near the north of the Barrier Reef, are basaltic rocks which may have formed within the last two million years. The islands are relatively fertile and densely vegetated. Extensive horticulture has been practised on them. There is abundant shell fish in close proximity to them. The three now inhabited islands, Mer, Erub and Ugar, have stone fish traps on their fringing reefs. Mer and Erub sustain relatively large populations by Torres Strait standards.
22 The central region of Torres Strait contains some high rocky islets, but low sandy islets predominate. The sandy islands are infertile and provide little by way of land-based food resources. Water is scarce in the dry season. Four sandy islets remain inhabited: Iama, Masig, Poruma and Warraber. There is abundant marine life, especially around the numerous reefs which lie to the north, north-west, east and south of these islands.
(ii) The People
23 Permanent occupation of the western parts of Torres Strait is considered to have occurred 4,000-2,600 years ago, by expansions of Aboriginal people speaking an Aboriginal language. Subsequent immigration of Papuan peoples brought major Papuan language influences into the region. Occupation of the eastern islands by Papuan speakers occurred at about the time of that subsequent immigration.
24 The historical evidence is that the peoples who settled in Torres Strait and their descendants were, and remained, a maritime people. A major symbol of their pre-colonial presence was the large (up to 20 metres in length), double-outrigger, sea-going, sailing canoe: see Attachment 3. They were able to travel long distances. These canoes were acquired from Papua through a complex system of exchange and payment (to which reference will be made below). While no direct evidence exists for the antiquity of canoe technology in the Strait prior to historical records (McNiven, 2008, [103]), it has been suggested the double outriggers may have been around for over one and a half millennia: Barham, 2000, 299. The islands were bereft of a wood supply suitable for the manufacture of such craft. The evidence equally suggests that each inhabited island possessed a sufficient number of these canoes to be able to transport the island’s population. Their uses, as colloquially described, were for flight, fight and food. As the historian, Steve Mullins, has put it:
It was the craft that brought them to the Strait, enabled them to exploit the region’s rich marine resources efficiently, allowed them to be part of a wide network of communities and to import from a range of sources the things they needed or desired.
25 The population of Torres Strait in the early years of European contact has been estimated at between 4,000 and 5,000 people distributed over 17 named communities who regularly occupied at least 25 islands for at least part of the year. It is said that only Mer and Saibai had pre-colonial populations of over 500 people.
26 Though the nineteenth century saw not insignificant population influxes (principally of Pacific Islanders) in association with the growth of the bêche-de-mer and pearlshelling industries which commenced in the 1860s, the Islander population living in Torres Strait has not expanded greatly. There has been very significant Islander migration to the mainland, most particularly since the 1960s.
27 The 2006 census figures reveal that approximately 53,000 people identified themselves as being of Torres Strait Island descent. The expert evidence is that a very large number of these (circa 37,000) are typically made up of people born from the 1970s onwards outside Torres Strait: see Burton, 2008, [15]. The figure for island dwellers in the same census for those 13 islands of present interest (ie excluding islands in the Part B sea claim) reflect the above comments:
(a) Northern Islands: Boigu – 255; Dauan – 144; Saibai – 312.
(b) Western Islands: Mabuiag – 238; Badu – 706; Mua – 397.
(c) Central Islands: Iama – 284; Masig – 267; Poruma – 145; Warraber – 238.
(d) Eastern Islands: Mer – 461; Erub – 283; Ugar – 76 (TSRA figure).
Total: 380628 Characteristically, the Islanders identify themselves first and foremost by reference to the island community to which they belong: Boigu, Poruma, etc. Historically and to this day, those individual communities are parts of five established regional island (or “cluster”) groupings. For reasons noted below, four are presently relevant. The people of the three Top Western Islands as they are known – Boigu, Dauan and Saibai – identify together as “Saibailgal”; those of the Western Islands – Mabuiag, Badu and Mua – as “Mululgal”; those of the Central Islands – Iama, Masig, Poruma and Warraber – as “Kulkulgal”; and those of the Eastern Islands – Mer, Erub and Ugar – as “Meriam”. For ease in exposition, I will refer to the four groupings by their English language name.
29 There are traditional language differences between and, to an extent, within the island groupings. These will be referred to later in these reasons. I should emphasise, though, that Torres Strait Creole has become the common language of all Torres Strait Islanders.
30 The narrative which now follows is presented for background and contextual purposes. Its predominantly maritime emphasis reflects not only Islander life, but also themes in the present claim. It is drawn largely, but not exclusively, from the Final Report of the historian, Professor Steve Mullins. As he emphasises, there is not only an extensive scholarly literature on pre-colonial maritime trade in Torres Strait, there is a range of historical documentary sources which relate to what can be described as the “customary maritime exchange” of the Islanders, as well as to Islander trade with, and to participation in the trading activities of, outsiders keen to exploit the marine resources of the Strait.
31 First, customary maritime exchange. As described by Mullins (2008, [19]), this had three important “socio-economic” contexts at the point of sustained contact with Europeans. These were, first, trade within the five cluster group communities which were dependent for their basic subsistence upon the complimentary exploitation of wild foods and cultivated crops in the physically contrasted islands of which each community consisted. In this context, visits by canoe were frequent, informal and often involved the exchange of gifts. The second context was trade between cluster groups. This was less frequent, more formal and often involved the exchange of specialised manufactures. The third was exchange between cluster groups and the mainland of Australia or PNG. This, it is said, took the form of systematised trade. The large sailing canoe was the most valuable commodity in this trade. I have appended Haddon’s 1890 description of the canoe trade between PNG and the Western Islands: see Attachment 4. While, as will be seen, long term, hereditary trading relationships formed an important aspect of long distance maritime trade, it has been questioned whether trade only functioned through a formalised system of set “trade routes” and “an unchanging pattern of relationships”: Lawrence, 1994, 289. Simply to illustrate the dimensions of trade across the Strait, I have included two charts (one of Haddon’s in 1904; the other of Harris in 1979, which is limited to the Western Islands) to illustrate patterns of customary trade and exchange: Attachment 5; see Lawrence, 1994, Figs 22 and 29.
32 Two additional comments should be made about customary exchange. First, exchange was not limited to “commodity exchange”. It extended to “ceremonial exchange” which, according to Mullins “was also important in cementing social relationships across Torres Strait”. A significant example of this will be seen in relation to the Cult of the Four Brethren in the Central and Eastern Islands. Secondly, customary exchange did not occur only between individuals and groups with long-term friendly relationships. It occurred between otherwise hostile groups.
33 Mullins’ summary of the historical documentary sources on pre-colonial maritime trade (2008 at [25]) is that:
[They] show a complex situation of numerous and vibrant exchange relationships between individuals, clans and communities that were the lifeblood of Torres Strait society. Much of the trade involved the necessities of life, such as food items or the implements to obtain food, like the dugong harpoon. Some items changed hands as gifts, and other exchanges had specific ceremonial and social purposes. Trading voyages also provided the opportunity for courtship and entering into marriage arrangements, to “show off new dances and songs” and for the spread of news, “new ideas and innovation”.
(Footnote omitted)
34 Secondly, trade and resource exploitation. By the end of the eighteenth century, the Islanders were positively soliciting from passing ships the exchange of “every kind of iron” (to quote Matthew Flinders), for their own artefacts and commodities. By the 1830’s, from April to September, three or four ships a week passed through the Strait on voyages from Sydney to Eastern ports. Islanders from islands near the main shipping channels (the eastern, central and south-western islands) took advantage of this to trade. They had been hunting hawksbill turtles and trading tortoise shell scutes to Europeans in a seasonal pattern since the 1820’s. By the 1840’s this had developed into a fairly regular trade, with colonial vessels now visiting the Strait specifically to acquire the product: Mullins, 2008, [158]. China was the principal world market, though the shell was also highly prized in Europe.
35 The period from the mid 1830’s to the early 1860’s was marked by substantial increase in trade and exchange. As trade with passing ships grew, the volume and velocity of trade in Torres Strait networks increased to meet the additional demand. Trade in shell products to PNG expanded to satisfy the European taste for artefacts, many of which were obtained on that coast. Eastern Islanders, because of their own deep waters, still had to rely mostly on Central Islanders for the shell products required in the PNG trade.
36 The export of tortoise shell from the Strait continued well into the twentieth century. However, the penetration of the bêche-de-mer (or dried sea cucumber) industry into Torres Strait in the 1860s marked a new departure in Strait resource exploitation. Bêche-de-mer was an expensive, signature ingredient in Chinese cuisine. The establishment of bêche-de-mer fishing stations in the Strait in the mid-1860’s coincided with the advent of colonial occupation (which began with the establishment of a joint Imperial-colonial outpost at Somerset on Cape York). The first wave of bêche-de-mer fishers had learned their trade in the western Pacific and brought their Pacific Islander workforce with them. As Mullins noted (2008, [96]), their arrival heralded a time of radical change when, amongst other things, Torres Strait Islanders began the process of acquiring things they could not produce themselves, “not through barter, but in exchange for their labour”. The Islanders initial involvement in the industry was as gatherers of bêche-de-mer. It was not until at least the 1880’s that a few began to gather and process bêche-de-mer themselves.
37 In 1868, the bêche-de-mer fishers became aware of the extent of the rich Torres Strait pearl shell beds. Commercial collection of pearl shell commenced, bringing with it a new population of maritime workers, many of whom settled in the Strait. The early 1870’s were years of rapidly rising mother-of-pearl prices in Europe that spurred on the industry. It dominated the Torres Strait economy for the next century. By the time all the present day Torres Strait Islands were annexed to the Crown in 1879, a large proportion of the Torres Strait Islander population was, in one way or another, caught up in the process of colonisation leaving less time for the preparation of, and participation in, trading voyages. Many Islanders joined the new industry, there being a great demand for skin divers. Equally, Imperial and colonial legislative restrictions on employing Pacific Islanders in the Strait in the early 1870’s caused a severe labour shortage which further encouraged Torres Strait Islanders into the pearl-shelling industry.
38 At the time of annexation the various marine industries were differentially distributed across the Strait: bêche-de-mer more significantly in the Eastern islands; pearl-shell, in the Central and Western island regions, but not in the Top Western island area (which seems not to have entered the historical record until the 1870’s: see Beckett, 2008A, [37]).
39 In the early 1900s a system facilitating the acquisition by Islander communities and families of pearl-shelling and trochus luggers and cutters was instituted. For most of its history it was administered by the Queensland Government. It existed in various forms from about 1904 to the late 1960s. At its height after World War II it employed some 600 Islander men operating between 20 and 30 vessels. The boats became known as “Company Boats” to distinguish them from the “Master Boats” owned by Europeans. Many Islanders refused to work in the Company Boats and chose instead to remain with, or return to, the master pearl-shellers, where they felt they were better rewarded for their efforts. Once the Company Boats were paid off they were used for communal purposes, such as hunting for turtle and dugong, and visiting friends and relations on neighbouring islands.
40 In 1912 a market for trochus shell was established in Japan. The shell was found in shallow water and was most efficiently collected by swimming divers. From 1915 Company Boats entered the trochus industry. Crews shifted between pearl-shell, trochus and bêche-de-mer, depending on price and seasonal conditions, though each product required quite different collecting and processing techniques.
41 World War II saw a hiatus in the fishing industries, as most of the fishing boats were commandeered by the Army and most of the able bodied men were recruited to serve in the Torres Strait Light Infantry Battalion. After the war, Islanders were granted greater freedom of movement than they had previously enjoyed and some emigrated to mainland Australia to work in the sugar and railway construction industries. Commercial fishing for pearl shell and trochus resumed after the war, but went into decline in the 1960’s as plastic came to be used as a substitute for shell in the manufacture of buttons, the main market for the shell. From the 1960’s a great many Islanders emigrated to the mainland as the census figures earlier referred to show. Although Islanders are not as substantially dependent on the marine industry for a livelihood as they once were, commercial fishing remains the only viable industry in Torres Strait. It is the main source of employment outside of government agencies and projects. Tropical rock lobster, known locally as kayar or crayfish, is now the main species exploited by Islanders; trochus, bêche-de-mer and finfish are also fished commercially.
42 There are three further contextual matters unrelated to fisheries to which it is necessary to refer. The first relates to violence in the Strait prior to annexation; the second, to the advent of the London Missionary Society in 1871; and the third, to aspects of post-annexation, governmental regulation of the Islanders.
43 In the first half of the nineteenth century the Islanders had, as Mullins put it, “a fearsome reputation” for attacks on strangers who entered their sea territory. The story of the audacious attacks on Bligh’s ships in 1792 was retold in most nineteenth century accounts on the region. The 1834 massacre of the survivors of the wreck of the Charles Eaton emphasised the dangers of passing through the Strait. After Flinders published his A Voyage to Terra Australis in 1814, mariners understood the Islanders were head-hunters. This practice was engaged in after battles, after raids for this purpose, as the occasion presented itself, or treacherously. For present purposes it is sufficient to note Haddon’s observations in the 1904 Report at 277-278 on “Homicide” and “Treatment of Strangers” (see also 1904, Ch XVI and 1935, 347-349, “Fighting and Head Hunting”):
It was a meritorious deed to kill foreigners either in fair fight or by treachery, and honour and glory were attached to the bringing home of the skulls of the inhabitants of other islands slain in battle. The men of Tutu were said to have been great warriors, and, I was told, often used to make a raid on another island in order that their young men might have trophies and so find favour with the women. Such raids were, as often as not, made upon weak islands, and not necessarily against those people with whom there was any enmity or ill-feeling.
…
All the natives of Mabuiag were most emphatic in their declaration to Mr Wilkin that any stranger or uninvited arrival of whatever colour, condition, or circumstance was killed, as one informant drily remarked to him, “He stop all the time!”
The second of these paragraphs in particular provides some of the context explaining the significance of customary trading relations (or “tebud” relationships) in pre-annexation customary exchange. As Professor Beckett (see below) observed (2008A, [49]):
These relations implied not merely an obligation to provide certain trade items, in exchange for certain other items, but also a guarantee of personal security; to go to a place where one was not known was to risk death.
I would add relatedly that certain communities periodically raided one another in search of vengeance and heads. People regarded people of other communities with suspicion: Beckett, ibid, [48]; Beckett, 2008B [13]. Again to quote Professor Beckett (1987, 30):
… the rich body of myths, folktales and traditions suggests that the fear of violent death was never far from people’s minds. Warfare was a major preoccupation, while headhunting occupied a place of central importance in their cultural and religious life.
Significantly, while raids and massacres were not uncommon, no land or marine territory appears to have been acquired through warfare: see eg Shnukal, 2004, 326; see also Beckett, 2008A, [31].
44 The London Missionary Society arrived in Torres Strait in 1871 with clear evangelizing purposes. By 1880 all but the smallest communities had a resident pastor or teacher. Every island had a church. The missionaries were quick to acquire considerable authority, religious and temporal, within the Islander communities. They suppressed non-Christian cults and practices they abhorred such as head-hunting and infanticide. These two practices had long contributed to population control in the Strait. By 1890 the Society regarded its initial task of conversion to be complete. After some conflict with the Queensland Government and with a growing diminution in the temporal authority of its missionaries, the Society withdrew from Torres Strait in 1915, handing over to the Anglican Diocese of Carpentaria.
45 Finally, a brief comment on governmental regulation of the Islanders. The main focus of governmental activity immediately after annexation appears to have been on the regulation of the pearling industry and the prevention of excessive exploitation of Torres Strait Islander and Pacific Islanders labourers. It is unnecessary to enlarge here upon this and its odd consequences: see Mullins, 1995, 97-116.
46 The Queensland Government depended on local participation in its administration of the islands. At first local chiefs, called mamooses, were appointed. These were not hereditary offices. Men were singled out who seemed to have influence over their fellows. When teacher magistrates were stationed in the larger communities, the mamooses served as assessors in local matters such as land disputes. In 1898 the Government Resident in Thursday Island, John Douglas, instituted an elected council on Mer, and subsequently councils were instituted throughout the Strait, sitting as an island court for local matters (Haddon, 1904, 264-265; 1908, 178-180).
47 In 1897 the Queensland Parliament enacted the Aboriginals Protection and Restriction on the Sale of Opium Act. It imposed a regime of intensive government supervision and control of Aborigines in Queensland. Douglas secured the Islanders’ exemption from its provisions. In 1911 they were effectively made subject to all of it. In 1912 the “Protector of Aborigines” appointed under the Act required Islanders employed in the pearl-shell industry on Master boats to be engaged under the Act’s permit system. In 1921 the Protector took control of a proportion of the earnings and savings of all Torres Strait Islanders.
48 In 1936 the Islanders mounted a general maritime strike against the government which lasted four months. The causes of this have not been explored in evidence, though the State in its Points of Response has admitted it resulted from dissatisfaction with government management of maritime industries. I would also note one of the Islanders’ desires was to be distinguished from Aborigines. This, and other changes including a form of local government and local island courts, were incorporated in the Torres Strait Islanders Act of 1939 (Qld) and were continued in successor legislation.
49 During World War II the Australian Army took over the administration of Torres Strait. Most Islander men enlisted. They served primarily in the Torres Strait Light Infantry Battalion and were stationed at the Thursday Island and Horn Island bases along with Australian and American servicemen. It has been said that this contact “opened their eyes” about the world outside the Strait: see Ganter, 1994, 92-93.
50 Finally, to revert to the second half of the nineteenth century, the advent of the marine industries, government and the missionaries from the 1860’s wrought both great change and great loss to the traditional ways of the Islanders. Yet they accommodated and adapted themselves to this.
2. THE APPLICATION
(i) Procedural Background
51 The application (now in its third iteration) was filed on 23 November 2001. The boundaries of the application area were drawn in a way that excluded both the Prince of Wales Group of Islands and islands and reefs off the immediate east coast of northern Cape York. The Prince of Wales islands are directly to the west and north-west of Cape York and are adjacent to it. They include Thursday Island, the administrative centre of Torres Strait. The Kaurareg people (from the Prince of Wales group) and several members of the Gudang people (from Cape York) became respondents to the application and asserted defensively what were said to be their own native title rights in two areas within the application area.
52 In 2008 both the Kaurareg and Gudang peoples filed separate native title claims each of which overlapped (in part) the original application area. By that stage the present application as it then stood was ready for trial. Given that areas of overlap have to be dealt with in the same proceedings: s 67(1) of the NT Act; I ordered the original application be split into Parts A and B, the latter consisting of the overlap areas.
He immediately went on to acknowledge the disputed histories of the Trans-Fly and Kiwai peoples (upon which he later elaborated).
994 He gave a village by village dot point summary of the usually multiple grounds for inclusion advanced in written submissions and in public and some private meetings. He prefaced his account of these with the observation:
No judgments are made on the relative strengths or credibility of the claims of connection outlined below.
However, as the Commonwealth submission notes, he had previously indicated that certain named Trans-Fly villages had “relatively strong connections to Torres Strait and Torres Strait Islanders”: Report, 15. In cross-examination, he said that the existing Kiwai Treaty Villages equally have strong connections with Torres Strait.
995 The claims made to Mr Murphy were not tested. They often enough invited further question as, for example:
·“No trade during headhunting times, but ongoing trade for several generations since pacification”;
·“Visited families in Torres Strait for extended periods, and were visited by Torres Strait Islanders for extended periods, to participate in each others’ gardening, hunting, fishing, ceremonial and other social activities”; (Emphasis added)
·“Underlying all these submissions [from one language group] is a polemic against the people of Mabudauan …”;
·“Trading and other social relationships were maintained until the recent restrictions were introduced”; and
·“Involvement in Torres Strait marine industries from early colonial era”.
Unsurprisingly, in many instances the claims raise temporal issues.
996 Though Mr Murphy acknowledged that he was able to consult with some Islanders, as I noted above, he indicated it was not possible to conduct a comprehensive survey of the views of Torres Strait Islanders.
997 Again unsurprisingly, Mr Murphy’s conclusions on the possibility for making judgments on the relative strengths and credibility of the claims of connection presupposed the need for further research on three questions:
1.What do Torres Strait Islanders have to say about all of this? Who do they regard from Papua New Guinea as having traditional connections with Torres Strait?
2.What light can published historical sources and unpublished archival sources shed on the disputed histories described herein?
3.With full consideration to the views of Torres Strait Islanders, to the historical documents, and to an analysis of the myths cited in assertions of connection to Torres Strait, what are the relative strengths of the connections of the people claiming to be traditional inhabitants?
998 It clearly is the case that the evidence in this matter had demonstrated (a) long-standing and deep trading relationships between Islanders and coastal PNG peoples, albeit these have weakened in modern times; (b) inter-marriage commencing prior to annexation; (c) use made by PNG people of the waters of the Strait for fishing (but particularly outside the claim area); and (d) particular PNG-Island connections, notably with Iama.
999 The Applicant does not, and could not, deny that some PNG nationals may have, or may have had, customary rights in the claim area. Nor does it deny the numerous interactions over generations between Islanders and coastal Papuans. Such rights and such relationships provide some of the evidence for Mr Murphy’s “larger society” that extends into coastal PNG. Indeed these on analysis might well mark the region of transition from one society to another where some, but not other, laws and customs are shared.
1000 The evidence, apart from Mr Murphy’s Report, does not sustain the Commonwealth’s contention that historic PNG use of the claim area demonstrates that the Applicant can have no claim, in fact, to exclusive possession of the sea claim area. It does not rise to that level. The Treaty Report does not have the ballast that the contention needed. The context of the Report, the contested assertions made and recorded in it, the absence of an Islander response to it, and the nature of the recommendations made in it, rob it of that level of cogency and reliability to sustain the conclusion the Commonwealth seeks of it.
1001 I do not accept the Commonwealth’s contention as to the effect of Mr Murphy’s Treaty Report and of his evidence in this proceeding.
17. ORDERS
1002 I have been requested by the parties to provide them with the opportunity to make submissions on the form of the Determination of Native Title to be made. This is entirely appropriate.
1003I will direct that:
(1)An agreed Draft Determination giving effect to these reasons be filed and served on or before Friday, 23 July 2010;
(2)In default of agreement:
(a)a Draft Determination be filed and served by the Applicant on or before Friday, 23 July 2010; and
(b)the Respondents file and serve such submissions as they may wish to make on or before Friday, 23 July 2010.
(3)The proceeding be adjourned to Brisbane on Friday, 30 July 2010 at 9.30 am for the making of final orders.
I certify that the preceding one thousand and three (1003) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate:
Dated: 2 July 2010
Attachment 1
TABLE OF LANGUAGE AND ENGLISH NAMES OF ISLANDS,
ISLETS, CAYS AND REEFS IN THE TORRES STRAIT
Indigenous language name
English name
Atub
Dugong Island
Awial Kawa
Kiss Island/Kerr Islet
Badu
Mulgrave Island
Bak
Bourke Island
Bara
Bet Islet
Beka Sandbank
Caldbeck Reef
Bini
Vini Islet
Boigu
Talbot Islands
Bubui
Lowry Islet
Buru
Turnagain Island
Damuth
Dalrymple Island
Dauan
Mount Cornwell Island
Edgor
Nepean Islet
Erub
Darnley Island
Garboi
Arden Islet
Garboi
Anchor Cay
Gebar
Two Brothers Island
Giralag
Friday Island
Goerarari
Orman Reefs
Guchen Sandbank
Pearce Cay
Guiya
Poll Island
Iama
Yam Island
Iem
North Possession Island
Igab
Marsden Island
Kerged
Don Cay
Keriri
Hammond Island
Koey Maza
Dollar Reef
Koey Wapa
Warrior Reef
Kulbi
Portlock Island
Mabuiag
Jervis Island
Maizab Kaur
Bramble Cay
Masig
Yorke Island
Mauar
Rennel Island
Maurura
Wednesday Island
Maza Guiya
Kircaldie Reefs
Mer
Murray Island
Merad
Underdown Islet
Misnare
East Cay
Mokanab
Travers Island
Mua
Moa Island
Mukar
Cap Islet
Muralag
Prince of Wales Island
Murbayl
Channel Island
Muri
Adolphus Island
Naghir
Mount Ernest Island
Nelgi
Twin Island
Ngurapai
Horn Island
Ob
Tobin Cay
Op Nor / Gara Gara Barria
Great Barrier Reef
Paililag
Goods Island
Polin
Hastings Reef
Poruma
Coconut Island
Rebes
Black Rocks
Rug
Smith Cay
Saibai
Sarbi
Bond Island
Smol Muri
Little Adolphus Island
Tekay
Watson Cay
Tidiu
Dungeness Reef
Tim Sandbank
Newman Reef
Tudu
Warrior Island
Tuin
Barney Island
Turu Cay
Norwest Sandbank
Ugain
Ninepin Rock
Ugar
Stephen Island
Ullu
Saddle Island
Ului
West Island
Umagar / Pentrick
Keats Island
Uttu
Dove Islet
Waiben
Thursday Island
Waral
Hawkesbury Island
Warraber
Sue Island
Warul Kawa
Deliverance Island
Yarpar
Roberts Island
Yauk
Layoak Island
Zagarsup
Tobin Island
Zapker
Campbell Island
Zuizin / Ap
Halfway Island
* Those islands that appear in bold are inhabited islands within the claim area.
Attachment 2
BIBLIOGRAPHY
Barham, A J (2000)
“Late Holocene Maritime Societies in the Torres Strait Islands, Northern Australia – Cultural Arrival or Cultural Emergence” in O’Connor, S and Veth, P (eds), East of Wallace’s Line: Studies of Past and Present Marine Cultures of the Indo-Pacific Region. (Rotterdam: AA Balkema Press, 2000)
Beckett, J (1972)
“The Torres Strait Islanders” in D Walker (ed) Bridge and Barrier: The Natural and Cultural History of the Torres Strait. (Canberra: ANU, 1972)
Beckett, J (1987)
Torres Strait islanders Custom and Colonialism (Cambridge: Cambridge University Press, 1987)
Beckett, J (2008A)
Draft Report
Beckett, J (2008B)
Final Report
Beckett, J (2009)
Supplementary Report
Burton, J (2008)
Supplementary Report
Flinders, M (1814)
A Voyage to Terra Australis (London, 1814).
Fuary, M (1991)
“Torres Strait and Dawdhay: Dimensions of Self and Otherness on Yam Island” (1991) 70 Oceania.
Fuary, M (2005)
2005 Connection Report for Yarpar and Uttu.
Ganter, R J (1994)
The Pearl-Shellers of Torres Strait: Resource Use, Development and Decline 1860s-1960s (MUP, 1994)
Haddon, A C (1904)
Reports of the Cambridge Anthropological Expedition to Torres Straits Volume V: Sociology, Magic and Religion of the Western Islanders, (Cambridge: Cambridge University Press, 1904)
Haddon, A C (1907)
Reports of the Cambridge Anthropological Expedition to Torres Straits Volume III: Linguistics. (Cambridge: Cambridge University Press, 1907)
Haddon, A C (1908)
Reports of the Cambridge Anthropological Expedition to Torres Straits Volume VI: Sociology, Magic and Religion of the Eastern Islanders. (Cambridge: Cambridge University Press, 1908)
Haddon, A C (1912)
Reports of the Cambridge Anthropological Expedition to Torres Straits Volume IV: Arts and Crafts. (Cambridge: Cambridge University Press, 1912)
Haddon, A C (1935)
Reports of the Cambridge Anthropological Expedition to Torres Straits Volume I: General Ethnography. (Cambridge: Cambridge University Press, 1935)
Hitchcock, G (2005)
Native Title Claim QG 6021/01: “Buru & Warul Kawa” – Warul-Kawa or Leberen (Deliverance Island), Turu Cay, Kerr or Kis Islet, and Buru (Turnagain Island) Supplementary Anthropological Report. (Thursday Island: Torres Strait Regional Authority, 2005)
Hviding, E (1996)
Guardians of Marovo Lagoon: Practice, Place and Politics in Maritime Melanesia (Honolulu: University of Hawaii Press, 1996).
Johannes, R and MacFarlane, J W (1991)
Traditional Fishing in the Torres Strait Islands (Hobart, CSIRO Division of Fisheries, 1991).
Laade, W (1969)
“Ethnographic notes on the Murray Islanders” (1969) 94 Zeitschrift fur Ethnographie.
Lahn, J (1999)
Connection Report Warraber QC 96/58 and Poruma QC 96/81 (1999).
Lawrence, D (1994)
“Customary Exchange across Torres Strait” (1994) 34 Memoirs of the Queensland Museum.
McNiven, I (2008)
Draft Report
Mullins, S (1995)
Torres Strait: A History of Colonial Occupation and Culture Contact 1864-1897, (CQUP, 1995)
Mullins, S (2008)
Draft Report
Murphy, K (2008)
Draft Report
Nietschmann, B (1985)
“Torres Strait Islander Sea Resource Management and Sea Rights” in K Ruddle and R Johannes (eds), The Traditional Knowledge and Management of Coastal Systems in Asia and the Pacific (Jakarta: UNESCO Regional Office for Science and Technology for Southeast Asia, 1985).
Nietschmann, B (1989)
“Traditional Sea Territories, Resources and Rights in Torres Strait” in Cordell J (ed), A Sea of Small Boats (Cambridge, Mass.: Cultural Survival, Inc., 1989)
Piper, N (2008)
Draft Report
Sackett, L (2008)
Final Report
Sackett, L (2009)
Supplementary Report
Schnukal, A (2004)
“The Post-Contract Created Environment in the Torres Strait Central Islands” (2004) 3 Memoirs of the Queensland Museum, Cultural Heritage Series.
Scott, C (2008)
Final Report
Scott, C and Mulrennan, M (1999)
“Land and Sea Tenure at Erub Torres Strait: Property, Sovereignty and the Adjudication of Cultural Continuity” (1999) 70 Oceania.
Attachment 3
DOUBLE OUTRIGGER CANOE
Attachment 4
Haddon’s account of the western island-PNG canoe trade
(see Haddon, The ethnography of the Western Tribe of Torres Strait, 1890, p 340-342)
The large canoes in the Straits all come from Daudai [New Guinea], about the neighbourhood of the Fly River. I was told the logs were cut and hollowed out at Wabad (Wabuda?) and fitted with a single small outrigger. Thence they passed through the hands of the Kiwai and Mowat people on the mainland of New Guinea and across to the island of Saibai. Here they are re-rigged with two outriggers, and a gunwale is fitted and the canoe decorated with a figure-head, bow-ornament, and otherwise ornamented with feathers and shells. From Saibai the canoes found their way to the other Islands of the western division of the Straits.
If a Muralug man wanted a canoe he would communicate with a friend at Moa who would speak to a friend of his at Badu; possibly the Muralug man might himself go to Badu. The Badu man would cross to Mabuiag to make arrangements and a Mabuiag man would proceed to Saibai. If there was not a canoe available at the latter place, word would be sent on, along the coast, that a canoe was to be cut out and sent down. The canoe would then retrace the course of the verbal order, and ultimately find its way to Muralug. If a man in any of the intermediate places had a new canoe to spare, he would sell it to the friend of the ultimate purchaser. If a canoe had to be made to order it would be a very long time before it arrived, as the message itself would only be transmitted when there happened to be a canoe going to the next stage, and the same applied to the delivery of the canoe. Another channel of the canoe trade was from Mowat direct to Tudu, and from thence to the central islands, and viâ Nagir to Muralug.
Payment was usually made annually until the canoe got a little broken; generally three instalments were paid. When a piece came off the canoe it was forwarded together with the final payment as a proof of the statement as to the condition of the canoe. The annual payment was, say three dibi-dibi, or goods of about equal value. Should a man be “hard up” when the annual payment became due, a certain amount of credit would be given, if the man honestly paid all he could afford. If the man could afford it he might make a single and final payment, say of a dugong harpoon (wap) or shell armlet (waiwi).
The intermediaries are paid for their service by “charging on”, the amount depending on individual cupidity, or they might be recompensed for their trouble by presents from the purchaser.
There appear to be considerable opportunities for cheating, but this is guarded against by the vigilance of the intermediary traders, who are themselves looked after by the Daudai men. If cheating occurred, the supply of canoes would cease, thus putting a stop to all commercial and fishing operations. In addition, there would be war, and the canoe confiscated.
Haddon, after his second expedition to Torres Strait in 1898, described the pattern of maritime trade in the eastern islands, revealing an even more ritualised process based on unbending long term relationships between individuals and clans, with trading rights handed down from father to son (Reports, 1935, vol 1, pp 182-183).
Attachment 5 CUSTOMARY TRADE ROUTES Attachment 6
PART A AND PART B SEA CLAIM AREAS
Attachment 7
PROGRESSIVE SOVEREIGNTY
Attachment 8
THE EXCLUSIVE AND SHARED MARINE ESTATES
The following does not purport to be a prescriptive account of the island communities’ own and shared estates. As the Islanders have emphasised, their estates are not divided by lines on water. As I have also indicated, the language used by the Islanders to describe their practices and activities in relation to waters – “used”, “shared”, “worked around” etc – either can have varying meanings (as I have indicated with “sharing/shared”) which can be context dependent, or can be quite unclear in what is signified in a given instance (eg by the word “Kulkulgal”). Necessarily what I have to say here will be inexact – but there is inexactness and inconsistency in the evidence. Nonetheless I undertake this task for these reasons.
In Bodney FC (at [178]) the Full Court, in speaking of “connection” in a context which has some parallels with the present matter commented:
It is not uncommon for the traditional laws and customs of a community to connect that community to a claim area by connecting groups within the community both to each other (often in complex ways) and, respectively and immediately, to their own particular portions of the claim area (in the latter case by granting rights to, and imposing responsibilities on, each such group in respect of its portion). In such cases, it is entirely appropriate that the connection inquiry consider not merely evidence of the general connection of the claimant community to the claim area, but also the evidence of the particular connection of the particular groups and their members to their respective portions of the claim area: see Neowarra … at [353]-[356]. The latter evidence, we would suggest, will ordinarily be necessary in some degree if the claimants’ assertion of connection is to be sufficiently manifest over the claim area as a whole – the more so, in communal claims, if rights and interests are held differentially across the community – though there can be cases where, because of long standing occupancy of the claim area, the s 223(1)(b) inquiry (as distinct from that under s 223(1)(a)) will not loom large: cf Griffiths v Northern Territory of Australia (2006) 165 FCR 300 at [561]-[562].
In this proceeding, unlike in Bodney FC, the Islander society under whose laws and customs native title rights and interests are possessed, does not claim to be a single traditional rights holding group. Rather, the Islanders are connected by membership of their Islander group to particular parts of the claim area. For this reason, in my view, the evidence of particular connection to each constituent part of the claim area and of its continuing reality is of no little importance, if s 223(1)(b) “connection” is to be satisfied for the claim area in aggregate.
Because the State has called into question connection in relation to the distant areas, I have considered it appropriate to satisfy myself of the reality of connection across the claim area. I have already indicated in dealing with problems at the extremities of the claim that there are areas in which I am not so satisfied.
What follows is a rough outline of what emerges from the Islander evidence as the owned and the shared territories of the various island communities. It is presented in a form which suggests a precision which is manifestly not there. My purpose, though, is not to delineate boundaries as such but, as I noted above, to satisfy myself as to the reality of the respective communities’ connection to their respective areas within the claim area. My “boundaries” embody my appreciation of the evidence and what can be taken from it. I have for the most part relied again upon those who have had significant marine experience in their particular regional areas, for example, Kris Billy, Kapua Gutchen and Bully Saylor in the Central and Eastern Island regions and Walter Nona in the Western Islands. The other matter that emerges from this exercise is the significant dimensions of shared areas in parts of the Strait apart altogether from those areas of sharing where waters of different communities meet.
(i) Mer
I have indicated earlier the eastern and southern perimeters of Mer’s exclusive estate. Disregarding Misnare and Garboi, the western extremity of the northern boundary of its exclusive estate is to the north of Asmet Kep (Kapua Gutchen: “Asmet Kep … and all the reefs running from Kerged in a south-west direction towards Mer are part of the Meriam area”). It runs in a south-westerly direction to the east of Gaidan and Dautpul Nor (both of which are part of the Erub area) through Au Meri (which is regarded as the “traditional boundary between Mer and Erub) then turning in a southerly direction passing to the east of Kebi Girwai (which is in Erub’s area) then south beside Irgogob (Irgogob, Au Pizir, Kebi Pizir, Beizam, Au Derder constitute the “fishing area of all eastern islands” but which Masig also uses “on a regular basis”: Kapua Gutchen; then south-easterly to the western side of Bur and then east to Eur (which is “Mer’s: reef”: Atai Wailu). The areas within the perimeter described appear on the evidence to constitute the exclusive estate of Mer. There is, though, a quite large area which Mer shares variously with Erub and with various of the Central islands. That area begins to the east of Kebi Girwai (which is in Erub’s area) and goes south-west below Domingo Reef (also Erub), to the north of Gau Gau (George Mye: an area “commonly used by York, Darnley and Murray”) and Nepkem Kep before turning south to Megi Waireg, then south from Kebi Waireg to the northern boundary of the Part B claim (this line would appear to be where Central Island and Eastern Island waters merge), then into the Part B claim area emerging at a point east of Sunday Reef and then north to Seven Reefs and then north-east to the western side of Bur.
(ii) Erub
The northern and eastern areas of Erub’s exclusive marine estate for NT Act purposes begin at that area on the Seabed Jurisdiction Line where the waters of Erub and Mer merge (which is to the north of Asmet Kep). The Erub and Mer waters run together in a south-westerly direction to an area to the north of Seriam Gau Gau before turning north-west to Benfadom where it merges and is shared with Masig’s estate around Benfadom. It then runs north-west merging with Masig up to Kos which provides the three way boundary between Ugar, Erub and Masig. From Kos, Erub’s estate then runs in a north-easterly direction around the western side of Maz Maz and Edgor and then in a north-easterly direction in the direction of Maizab Kaur until it reaches the Seabed Jurisdiction Line.
Erub shares the same shared area as I have described for Mer. It also shares an area with Masig which is bounded by Benfadom, Nepkem Kep and Seriam Gau Gau.
(iii) Ugar
I have earlier described the northern boundary of Ugar’s exclusive marine estate as it goes west of Ugar. That part which can be acknowledged for NT Act purposes follows the Seabed Jurisdiction Line into the area of Guchen Sandbank. From Gutchen Sandbank, Ugar’s marine estate runs south-east bordering Masig’s estate to Kos. It then borders Erub’s estate north to the Seabed Jurisdiction Line.
(iv) Masig
The north-western reach of Masig’s exclusive estate appears to begin on the eastern side of Moon Passage which divides Warrior Reef. It then runs in a south-westerly direction to the east of the waters of Warrior Reef until it reaches Tidiu (Dungeness Reef). Tidiu, I note in passing, is shared by Poruma, Warraber and Iama. From the top of Tidiu, the boundary estate runs east to the north of Garboi (which belongs to Poruma and Masig), south-east to Aureed then to Mimi and Small Mimi (which belong to Masig) before meeting up with the shared area with Erub at Nepkem Kep. From Nepkem Kep, the exclusive area turns in a northerly direction to the west of Benfadom and then follows the estates of Erub and then Ugar to just south of Guchen Sandbank before turning west to Moon Passage.
The dimensions of Masig’s shared area with the Eastern Islands is very difficult to delineate on the evidence. This is largely for the reason I foreshadowed much earlier in these reasons when talking about shared areas. It relates to the infelicity in language relating to the use of areas by some of the witnesses. There is, for example, evidence of Masig using areas as far to the south-east of it as Au San, Kebi San and Toleh Toleh Nor which are very much part of the Murray line. These, Kapua Gutchen seems to suggest, were an Eastern Island preserve (“Eastern Islands boats normally worked around what is called the Murray line”). I am not able to satisfy myself that areas such as these were shared in the sense they had shared occupation by Masig and Eastern Islanders. While I do not rely simply on the names of the three reef areas to which I have referred, it is interesting that all are in the Meriam language. In attributing a range to Masig’s shared areas with the Eastern Islands, I may in fact be excluding what traditionally was shared under the Islander’s system of laws and customs. Nonetheless, given the very limited assistance the Applicant has provided in relation to the areas south of Erub, I am compelled to take a quite conservative approach. Accordingly I would regard Masig’s shared area with the Eastern Islands as beginning at Benfadom, running south-easterly through Gau Gau Kes (which is “commonly used” by Yorke, Darnley, Murray and Dauar), then south-westerly through Bazpir Kes and Der Der Kes to the south of Nepkem and then south to Kebi Waireg below which it seems the Central Island and Eastern Island waters merge along the line running south to the boundary of the Part B claim area. I will refer below to the area Masig shares with the other Central Islands.
(v) Poruma
The western boundary of Poruma’s exclusive marine estate commences to its north in the waters around Tidiu and to the south at the eastern end of Sassie. The boundary then goes in a south-easterly direction around Gagainab (which belongs to Poruma) before swinging in a north-easterly direction around Beka Sanbaink (notwithstanding the Commonwealth’s contrary concession to Warraber), around Aureed (the waters around which are shared by Masig, Warraber and Poruma), before heading in a north-westerly direction through an area where its waters merge with those of Masig until it reaches Garboi before continuing to the top end of Tidiu. I will refer below generally to Poruma’s shared area with other Central Islands but note here that Masig has a shared area with Poruma, being the waters around and between Garboi and Aureed.
(vi) Iama
The north-eastern boundary of Iama’s exclusive area begins on the eastern side of Warrior Reef at Moon Passage and runs southward through the nearby waters of Warrior Reef and then Tidiu before going south-west around Sassie, the waters of which are shared with both Poruma and Warraber before heading due west to Tekay which in turn may be shared with Mua (Mareko Kebisu’s evidence is that Tekay is part of the area that belongs to Iama; Alick Tipoti’s, that it is in the area of Mabuiag, Mua and Badu; northward across the Seabed Jurisdiction Line to a point midway between Buru and Iki (Iki, Polin and Ngazi are all part of the area that belongs to Iama: Mareko Kebisu) then turning due east to the boundary of the Top Hat where it would there pass into PNG waters and be of no present concern for NT Act purposes.
(vii) Warraber
There is a large area in Warraber’s exclusive marine estate about which there is very little evidence. I have earlier indicated my findings on Warraber’s estate area to the south and south-east of Naghir before passing into the Part B area: see “The Extremities of the Claim area”. To the east, the exclusive estate emerges from Part B at a point on the boundary line north of Atub and then northwards to the west of Moegi Maitun and Koey Maitun both of which are shared with Poruma and Masig before veering to the north-west below Gagainab and onto Sassie.
(viii) The Shared Central Island Area
It is difficult to identify with any precision which are the islands that participate in the sharing to which I will now refer. The reason for this is that the Central island witnesses who deal with the matter simply refer to the area as being “Kulkulgal” which in context may mean some or all of the Central Islands: see eg Ethel Bob.
While there have been some individual claims made for Iama in the shared area (George Lui refers to Zuizin or Halfway Island being shared by Poruma, Masig, Warraber and Yam; Kris Billy asserts that Seriam Gau Gau is shared by Poruma, Warraber, Yam and Masig), the predominant view would seem to be that the sharing parties for most, if not all, of it are Masig, Poruma and Warraber. For present purposes I leave out of consideration sharing in the Part B area. Commencing at a point to the north of Atub, the shared area runs east to a point on the Part B boundary line to the south of Kebi Waireg. From there is runs to the north sharing waters with Mer and then Mer and Erub (near Kebi Waireg) and then to the eastern side of Megi Waireg, this time sharing waters with Masig, Erub and Mer into Cumberland Passage and then around Nepkem Kep and then Aureed before merging with the exclusive estates, first, of Poruma going south, and then Warraber until it reaches the point above Atub on the Part B claim line.
(ix) Mua
The south eastern boundary of Mua’s exclusive area has been referred to earlier: see “The Extremities of the Claim area”. The eastern boundary of its estate is in the waters it shares with Warraber around Naghir, Gitalai, Sauraz and probably Tekay before arcing west around Sarbi (which belongs to Mua). It then passes through the channel between Badu and Mua on the southern side of Yargas and Tik onto the Mua side of Tuin (which is shared by Mua and Badu: Nona and Manas v Queensland [2006] FCA 412), and across Dollar Reef to the boundary of the Part B sea claim. Mua also shares an area with Badu starting at the Part B sea claim boundary line at the end point of its exclusive marine estate boundary and goes west to the western edge of Dollar Reef before going north around Moegi Gua and Koey Gua and then north-westerly around Mukurad before turning east and passing through between Tukupai (which is shared by Mua and Badu: Nona and Manas v Queensland [2006] FCA 412) and Yol (which belongs to Badu) before finally joining up with Mua’s exclusive area in the waters above Tuin.
(x) Badu
The eastern boundary of Badu’s exclusive area is shared with Mua save that where, the channel is divided by the islands above Tuin, the waters on the western side belong to Badu. The boundary line hooks north to the west of Sarbi before turning west and goes south of Kuiku Pad (which belongs to Mabuiag) through Alligator Passage. It continues north/north-westerly towards Turu Cay until it meets the Seabed Jurisdiction Line. From there, for the purposes of the NT Act claim as distinct from Mua’s marine estate, it follows the Seabed Jurisdiction line till it meets the notional point of intersection of a line running between Turu Cay and Cook Reef around which it turns south-easterly passing around the western and southern side of Cook Reef (Cook Reef and Turu Cay form the western boundary of Badu’s estate: Walter Nona) before turning to the islands shared with Mua to the south-west of Badu.
(xi) Mabuiag
The south-western extremity of Mabuiag’s exclusive area commences adjacent to that point on the Seabed Jurisdiction Line where Badu’s northern boundary joins that line. From that point it goes south-eastwards following alongside Badu’s area and then Mua’s before turning northwards at Tekay (which it might share) from where it runs adjacent to Iama’s waters (the estates of Mabuiag and Iama meet at a point equidistant between Mabuiag and Iama) to the point where Iama’s boundary turns to the east in the Top Hat area. At around that point Mabuiag’s boundary turns to the west. It then runs into the Australian territorial waters of Buru.
Mabuiag’s exclusive estate runs to the south of Buru’s territorial waters and Aidal Maza until it reaches the Fisheries Jurisdiction Line. From there it follows that Line south until it meets with the Seabed Jurisdiction Line. The estate then runs in a south westerly direction until it intersects with the northern part of Badu’s exclusive estate.
Buru was the subject of a consent land determination in favour of the peoples of Saibai, Dauan, Boigu, Badu and Mabuiag (Nona and Ors v Queensland [2005] FCA 1118). This territorial waters area seems on the evidence to be used by all five of the consent determination communities and it is not unreasonable to regard the territorial waters as being part of the shared area. The shared area extends additionally to the south-west of Buru around Aidal Maza, then west to the Fisheries Jurisdiction Line boundary before turning north-east to re-join the territorial waters on their western extremity.
(xii) Boigu, Dauan and Saibai
For present purposes, such is the nature of sharing between Dauan and Saibai that save for Saibai’s home areas, it is unnecessary to distinguish between them. The northern, eastern and western boundaries for the Top Western Islands are set by the Fisheries Jurisdiction Line. The southern boundary is set by the boundaries of Iama, Mabuiag and the area around Buru which is shared by Boigu, Dauan, Saibai, Mabuiag and Badu. As between Boigu and Saibai, the evidence is that the boundaries of the waters of each respectively are divided in the middle between them. As I have already indicated shared use is made by all three of the waters of each of Saibai and Boigu (ie Dauan and Saibai can use Boigu waters; Boigulgal can use Saibai and Dauan waters).
Attachment 9
PROTECTED ZONE
89