Dauan People v State of Queensland

Case •

[2000] FCA 1064

•

6 JULY 2000

FEDERAL COURT OF AUSTRALIA

Dauan People v State of Queensland [2000] FCA 1064

DAUAN PEOPLE v STATE OF QUEENSLAND, TORRES STRAIT REGIONAL AUTHORITY, TELSTRA CORPORATION LIMITED, ERGON ENERGY CORPORATION LIMITED & OTHERS
QG 6248 OF 1998

DRUMMOND J
6 JULY 2000
DAUAN ISLAND


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 6248 OF 1998

BETWEEN:

DAUAN PEOPLE
APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

TORRES STRAIT REGIONAL AUTHORITY
SECOND RESPONDENT

TELSTRA CORPORATION LIMITED
THIRD RESPONDENT

ERGON ENERGY CORPORATION LIMITED
FOURTH RESPONDENT

AL MOLLER-NIELSEN, BARRY EHRKE, BARRY WILSON, BERNARD BRADLEY, BRUCE ROSE, CARL D’ARGUIAR, DARYL O’HANLON, FRANK SWINBURNE, MARK MILLWARD, MARK WILLIS, NEVILLE DAVIES, PAUL GREEN, PHILLIP HUGHES
FIFTH RESPONDENTS

JUDGE:

DRUMMOND J

DATE OF ORDER:

6 JULY 2000

WHERE MADE:

DAUAN ISLAND

THE COURT ORDERS BY CONSENT THAT:

1.Native title exists in relation to the determination area as shown on the map annexed to this Order and marked “Annexure A”, ie, the land and inland waters of Dauan Island being Lot 9 on Plan TS 169 on the landward side of the high water mark but not including the following areas as shown on the map annexed to this Order and marked “Annexure B”:

(a)Lot 10 on Plan TS 170 being  Crown Reserve for State School R254;

(b)Lot 11 on Plan TS 170 being  Crown Reserve for State School (Residential) R255;

(c)Lot 12 on Plan TS 169 being Crown Reserve for State School R256;

(d)The land east of the Council office on which the Telstra mast and equipment shelter are situated, including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation;

(e)The land on which Ergon Energy Corporation power station is situated including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation being Lease P in SP127307; and

(f)The Roads as more particularly shown on the map annexed to this Order.

2.The persons holding the communal and group rights comprising the native title (“the common law holders”) are the Dauanalgaw (the Dauan people).

3.The nature and extent of the native title rights and interests in relation to the determination area are the rights and interests of the common law holders to possess, occupy, use and enjoy the determination area in accordance with Order 6 but always subject to and in accordance with their traditional laws and customs and in particular to:

(a)live on the determination area;

(b)conserve, manage, use and enjoy the natural resources of the determination area for the benefit of the common law holders including for social, cultural, economic, religious, spiritual, customary and traditional purposes;

(c)maintain, use and manage the determination area for the benefit of the common law holders, that is to:

(i)maintain and protect sites of significance to the common law holders and other Aboriginal people, Papuans and Torres Strait Islanders on the determination area;

(ii)inherit, dispose of or give native title rights and interests in the determination area to others, being members of the common law holders pursuant to their traditional laws and customs;

(iii)decide who are the native title holders provided that such persons must be Torres Strait Islanders within the meaning of that term in the Native Title Act 1993 (Cth);

(iv)regulate among, and resolve disputes between, the common law holders in relation to the rights of possession, occupation, use and enjoyment of the determination area;

(v)conduct social, religious, cultural and economic activities on the determination area; and

(d)make decisions about and to control the access to, and the use and enjoyment of, the determination area and its natural resources being animal, plant, fish and bird life found on or in the determination area from time to time and all water, clays and soils found on or below the surface of the determination area and all other matter comprising the determination area excluding minerals and petroleum, and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and of the State of Queensland.

4.The nature and extent of any other interests in relation to the determination area are:

(a)the powers of the Dauan Island Council under the Community Services (Torres Strait) Act 1984 (Qld) to discharge the functions of local government of the area of the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to the Dauan Island Council and exercise the powers of good rule and government thereof in accordance with the customs and practices of the inhabitants of that area;

(b)the interests of the Dauan Island Council and persons under the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to Dauan Island Council;

(c)the interests of Ergon Energy Corporation Limited as an entity exercising statutory powers  and as owner and operator of electricity generation, transmission and distribution facilities on Dauan Island, including:

(i)the right to enter upon the determination area in accordance with the law; and

(ii)its interests under a Deed of Agreement dated 28 June 2000 between it and representatives of the common law holders.

(d)the interests of Telstra Corporation Limited as an entity exercising statutory powers  and as owner and operator of telecommunication facilities on Dauan Island, including:

(i)the right to enter upon the determination area in accordance with the law; and

(ii)its interests under a Deed of Agreement dated 27 June 2000 between it and representatives of the common law holders.

(e)the interests of indigenous Papua New Guinea persons in having access to the determination area for traditional purposes;

(f)the rights of indigenous inhabitants of Saibai Island and Boigu Island to enter, live upon and/or use the determination area in accordance with the traditional laws and customs of the common law holders;

(g)the interests recognised under the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters as in force at the date of this determination; and

(h)other interests that may be held by reason of the force and operation of laws of the Commonwealth and of the State of Queensland.

5.(i)        The relationship between the native title rights and interests in Order 3 and the other interests in relation to the determination area in Order 4 is as follows:

The native title rights and interests described in Order 3 are exercisable concurrently with the other interests described in Order 4, but in those circumstances where they cannot be so exercised, the entitlements of the holders of the other interests may regulate control, curtail, restrict, suspend or postpone the exercise of those native title rights and interests.

(ii)The native title rights and interests of the Dauanalgaw are subject to extinguishment by either:

(a)the lawful powers of the Commonwealth and the State of Queensland; or

(b)lawful grants or creation of interests pursuant to the laws of the Commonwealth and the State of Queensland.

6.Subject to and in accordance with the traditional laws and customs of the common law holders and the effect and operation of the laws of the Commonwealth and of the State of Queensland and, to the extent that the interests referred to in Order 4 prevent or limit it, the native title rights and interests confer possession, occupation, use and enjoyment of the determination area to the exclusion of all others.

7.The words and expressions used in this Order have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions:

(a)“natural resources” means animal, plant, fish and bird life found on or in the determination area from time to time and all water, clays and soils found on or below the surface of the determination area and all other matter comprising the determination area excluding minerals and petroleum, and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and of the State of Queensland;

(b)“minerals” has the meaning given to it in the Mineral Resources Act 1989 (Qld);

(c)“petroleum” has the meaning given to it in the Petroleum Act 1923 (Qld); and

(d)“high water mark” has the meaning given to it in the Land Act 1994 (Qld)

BY CONSENT IT IS FURTHER AGREED THAT:

8.The native title is to be held in trust by the Dauanalgaw (Torres Strait Islanders) Corporation.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 6248 OF 1998

BETWEEN:

DAUAN PEOPLE
APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

TORRES STRAIT REGIONAL AUTHORITY
SECOND RESPONDENT

TELSTRA CORPORATION LIMITED
THIRD RESPONDENT

ERGON ENERGY CORPORATION LIMITED
FOURTH RESPONDENT

AL MOLLER-NIELSEN, BARRY EHRKE, BARRY WILSON, BERNARD BRADLEY, BRUCE ROSE, CARL D’ARGUIAR, DARYL O’HANLON, FRANK SWINBURNE, MARK MILLWARD, MARK WILLIS, NEVILLE DAVIES, PAUL GREEN, PHILLIP HUGHES
FIFTH RESPONDENTS

JUDGE:

DRUMMOND J

DATE:

6 JULY 2000

PLACE:

DAUAN ISLAND

REASONS FOR JUDGMENT

  1. I have before me an application for a consent determination of Native Title on behalf of the people of Dauan.

  2. Long before 1879, the Dauan People lived on this land.  They gained their subsistence by gardening, fishing, hunting, foraging and trading.  They were a maritime people who had frequent contact with people from other Torres Strait Islands and from the Papua New Guinea mainland.  They actively defended their homes and their lives from often unfriendly neighbours.  They had a system of law which regulated relationships among themselves and governed the use and the ownership of the land.

  3. On 5 December 1879, Captain Pennefather of the Queensland Government Steamer “Pearl” came to Dauan, mustered all the inhabitants of the island and told them that henceforth they would be amenable to the laws of the white man, as the island now formed part of the territory of Queensland.  Whatever this may have meant to those people on Dauan on that night, it is unlikely that they believed that they were being dispossessed of their land by Captain Pennefather’s declaration.  And in fact, according to Australian law, they were not dispossessed.

  4. Today, Australian law recognises by the Court’s determination that native title has existed and continues to exist over the island of Dauan.  It further declares that the holders of the communal and group rights constituting that native title are the Dauan people.

  5. The Court is not convened to impose any decision upon any of the parties.  Its judgment is, as representatives from the bar table have mentioned, a consent determination.  Just as Australian law, by this determination, recognises the traditional rights of the Dauan people, so do the Dauan people recognise the interests that others have in their ancestral lands.  They recognise the interest of the State of Queensland in the school lands, and the interests of the energy and communication authorities in the lands they need for the installations they have upon the island.

  6. The Court has had the opportunity to consider the draft determination, Exhibit 1, and I am of the opinion that it is appropriate to make orders and declarations in terms of that exhibit.  There will therefore be a declaration that native title exists in relation to the island of Dauan as shown on the map annexed to Exhibit 1.  There will be a further declaration that the persons holding the communal and group rights comprising the native title are the Dauan people.  There will be a declaration in terms of Order 4 as to the nature and extent of the other interests in the island of Dauan.

  7. There will be orders in terms of Orders 5, 6 and 7 of the declaration.  It being the intention of the Dauan people to have their native title held in trust for and on behalf of the Dauan people, the Dauanalgaw (Torres Strait Islanders) Corporation is to be the trustee of that native title, and there will be a declaration accordingly.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:             8 August 2000

Solicitor for the Applicant: Mr P Hayes
Counsel for the First Respondent: The Honourable Attorney-General for the State of Queensland Matt Foley
Solicitor for the First Respondent: Crown Solicitor
Solicitor for the Second Respondent: Mr P Hayes
Solicitor for the Third Respondent: Blake Dawson Waldron
Solicitor for the Fourth Respondent: McDonnells
Solicitor for the Fifth Respondents: Gore & Associates
Date of Hearing: 6 July 2000
Date of Judgment: 6 July 2000
Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0