Jack Billy on behalf of the Poruma People and; The State of Queensland and Ors - [2005] FCA 1115

FEDERAL COURT OF AUSTRALIA
Jack Billy on behalf of the Poruma People and
The State of Queensland and Ors [2005] FCA 1115
NATIVE TITLE – consent determination – Court’s discretion making order under s 87 – relevant factors Court to take into account when determining whether Court is satisfied it is appropriate to make orders sought
Native Title Act 1993 (Cth), s 87
Jack Billy on behalf of the Poruma People and THE STATE OF QUEENSLAND and OTHERS
QUD 6043 OF 2001
BLACK CJ
15 AUGUST 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 6043 of 2001

BETWEEN:

JACK BILLY ON BEHALF OF THE PORUMA PEOPLE
APPLICANT

AND:

THE STATE OF QUEENSLAND
FIRST RESPONDENT

DANNY GEORGE BROWNLOW
SECOND RESPONDENT

GUY STEWART AND BEVERLEY JOAN BRUCE
THIRD RESPONDENT

CARL DAGUIAR
FOURTH RESPONDENT

BARRY EHRKE
FIFTH RESPONDENT

ROBERT GEORGE GIDDINS
SIXTH RESPONDENT

LARRY AND PAMELA HUDSON
SEVENTH RESPONDENT

RICHARD LAURENCE JONES
EIGHTH RESPONDENT

BOB LAMACCHIA
NINTH RESPONDENT

NOEL AND KEN LOLLBACK
TENTH RESPONDENT

ROBERT BRUCE LOWDEN
ELEVENTH RESPONDENT

STEVEN MACDONALD
TWELFTH RESPONDENT

MARK MILLWARD
THIRTEENTH RESPONDENT

ALISON NEWBOLD
FOURTEENTH RESPONDENT

PETER J PAHLKE
FIFTEENTH RESPONDENT

BRUCE ROSE
SIXTEENTH RESPONDENT

KAREN SKUDDER
SEVENTEENTH RESPONDENT

ROBERT STEFAN JOHN STANDEN
EIGHTEENTH RESPONDENT

MARK WILLIS
NINETEENTH RESPONDENT

BARRY WILSON
TWENTIETH RESPONDENT

JUDGE:

BLACK CJ

DATE:

15 AUGUST 2005

PLACE:

MELBOURNE

BEING SATISFIED that a determination of native title in the terms set out in the attached Minute of Consent Determination of Native Title in respect of application QUD 6043 of 2001 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to section 87 of the Native Title Act 1993 and by the consent of the parties:
THE COURT ORDERS BY CONSENT THAT:
1.Native title exists in relation to the land and waters on the landward side of the High Water Mark of Lot 48 on Crown Plan TS 243 known as Uttu (also referred to as Dove Island) and Lot 41 on Crown Plan TS 217 known as Yarpar (also referred to as Roberts Island) and shown on the plan in Schedule 1 (“the Determination Area”).

2.Native title is held by the people described in Schedule 2 (“the Native Title Holders”).

3.Subject to paragraphs 4 and 5, the native title is a right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others.
4.Subject to paragraph 5, the native title in relation to Water is a non-exclusive right to:
(a)hunt and fish in or on, and gather from, the Water for the purpose of satisfying personal, domestic or non-commercial communal needs; and
(b)take, use and enjoy the Water for the purpose of satisfying personal, domestic or non-commercial communal needs.

The native title in relation to Water does not confer possession, occupation, use and enjoyment of the Water on the Native Title Holders to the exclusion of all others.
5.The native title is subject to and exercisable in accordance with:
(a)the laws of the Commonwealth of Australia and the State of Queensland; and
(b)traditional laws acknowledged and traditional customs observed by the Native Title Holders.

6.The nature and extent of the other interests in relation to the Determination Area are set out in Schedule 3.

7.The relationship between the native title and the other interests referred to in paragraph 6 is that:
(a)the other interests continue to have effect and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of native title; and
(b)the other interests and any activity done in exercise of the rights conferred by or held under the other interests prevail over the native title and any exercise of the native title.

8.If a word or expression is not defined in this order, but is defined in the Native Title Act 1993 (Cth) then it has the meaning given to it in the Native Title Act 1993 (Cth). In addition to the other words defined in this order:
(a)“High Water Mark” has the meaning given to it in the Land Act 1994 (Qld);
(b)“Laws of the Commonwealth and the State of Queensland” means the common law and the laws of the State of Queensland and Commonwealth of Australia and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
(c)“Local Government” has the meaning given to it in the Local Government Act 1993 (Qld); and
(d)“Water” has the meaning given to it in the Water Act 2000 (Qld).

9.The native title is to be held in trust by the Porumalgal (Torres Strait Islanders) Corporation for the benefit of the Native Title Holders.

10.Each party to the proceeding is to bear its own costs.

Date that entry is stamped:
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Deputy District Registrar

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

SCHEDULE 1
NATIVE TITLE DETERMINATION PLAN

SCHEDULE 2
NATIVE TITLE HOLDERS
The Poruma People, being:
(a)the descendants of one or more of the following apical ancestors:

Laieh, Gauid, Kalai, Mapoo and Wawa; and

(b)Torres Strait Islanders who have been adopted by the above people in accordance with the traditional laws acknowledged and traditional customs observed by those people.

SCHEDULE 3
OTHER INTERESTS
The nature and extent of the other interests in relation to the Determination Area are:
(a)the interests of the Gau Land Trust and the beneficiaries under deed of grant No. 40016531;

(b)the interests, powers and functions of the Torres Shire Council as Local Government for Lot 48 on Crown Plan TS 243 and Lot 41 on Crown Plan TS 217;

(c)the interests recognised under the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters signed at Sydney on 18 December 1978 as in force at the date of this order including the interests of indigenous Papua New Guinea persons in having access to the Determination Area for traditional purposes; and

(d)any other interests that may be held by reason of the force or operation of the laws of the Commonwealth of Australia or the State of Queensland including the common law.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 6043 of 2001

BETWEEN:

JACK BILLY ON BEHALF OF THE PORUMA PEOPLE
APPLICANT

AND:

THE STATE OF QUEENSLAND
FIRST RESPONDENT

DANNY GEORGE BROWNLOW
SECOND RESPONDENT

GUY STEWART AND BEVERLEY JOAN BRUCE
THIRD RESPONDENT

CARL DAGUIAR
FOURTH RESPONDENT

BARRY EHRKE
FIFTH RESPONDENT

ROBERT GEORGE GIDDINS
SIXTH RESPONDENT

LARRY AND PAMELA HUDSON
SEVENTH RESPONDENT

RICHARD LAURENCE JONES
EIGHTH RESPONDENT

BOB LAMACCHIA
NINTH RESPONDENT

NOEL AND KEN LOLLBACK
TENTH RESPONDENT

ROBERT BRUCE LOWDEN
ELEVENTH RESPONDENT

STEVEN MACDONALD
TWELFTH RESPONDENT

MARK MILLWARD
THIRTEENTH RESPONDENT

ALISON NEWBOLD
FOURTEENTH RESPONDENT

PETER J PAHLKE
FIFTEENTH RESPONDENT

BRUCE ROSE
SIXTEENTH RESPONDENT

KAREN SKUDDER
SEVENTEENTH RESPONDENT

ROBERT STEFAN JOHN STANDEN
EIGHTEENTH RESPONDENT

MARK WILLIS
NINETEENTH RESPONDENT

BARRY WILSON
TWENTIETH RESPONDENT

JUDGE:

BLACK CJ

DATE:

15 AUGUST 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
BLACK CJ

This is an application for a determination of native title in respect of Uttu and Yarpar, two islands in the Torres Strait. In respect of Uttu, which is also known as Dove Island, the area for which the determination is sought is the land and waters on the landward side of the high water mark on Lot 48 on Crown Plan TS 243. In respect of Yarpar, which is also known as Roberts Island, the claim area is Lot 41 on Crown Plan TS 217.
The application, which was commenced in November 2001, is made on behalf of the Poruma people. In the previous year the Poruma people obtained a determination of native title in respect of the nearby Poruma Island, also known as Coconut Island.
The parties to the application have now reached agreement about the terms of an order of the Court determining native title, and they ask the Court to make an order in the terms that they have agreed, and to do so without holding a further hearing.
For the reasons that follow, I am satisfied that the Court can, and should, make an order in the terms the parties seek.
Section 87 of the Native Title Act 1993 (Cth) (the Act) provides that if the parties reach agreement on the terms of an order of the Federal Court, the Court may “if it appears to it to be appropriate to do so” make an order in those terms without holding a hearing. There are, however, preconditions: the terms of the agreement, in writing, signed by or on behalf of the parties, must first be filed with the Court, and the Court must be satisfied that the order in those terms would be within the power of the Court.
The terms of the agreement between the parties are in writing, the agreement is signed by or on behalf of the parties and the agreement is filed with the Court. There can be no doubt about the jurisdiction of the Court to make the orders sought (see s 81 of the Act) and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded by the making of those orders. Specifically, the requirements of s 94A of the Act are satisfied because the proposed order sets out details of each of the matters mentioned in s 225.
It therefore remains only to consider whether it would be “appropriate” to make the orders sought.
As I have noted on other occasions, the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. The matters to be taken into account in the exercise of the discretion, and the weight to be given to those matters, may very well vary according to the particular circumstances of each case.
In the present case, it is clear that the parties have had independent and competent legal advice and there is no suggestion that the agreement was not freely entered into. The agreed terms of the proposed orders are unambiguous and are appropriate in the circumstances.
The material before the Court includes an affidavit of the late Victor Billy sworn on 23 October 2001 and also by an anthropological report prepared on behalf of the applicants in April 2005 by Dr Maureen Fuary, a consultant anthropologist with wide experience in the Torres Strait.
Mr Billy, in his affidavit filed upon the commencement of the proceedings, said:
“3.Our forefathers lived on the claim area before us, and after they moved they continued to visit, and in doing so maintained continuous traditional physical connection to the claim area.
4.The traditional land owners have an acknowledged system of traditional laws and customs which they have observed and continue to observe relating to, among other things, land ownership. These laws and customs determine who are the rightful owners of the land, how such ownership may rightfully pass from one person to another and collectively recognise the continuing traditional associations with the claim area of the Porumalgal People.
5.In support of some of the right included as part of the continuing traditional inheritance of Porumalgal people and therefore as part of their native title rights, I confirm that:
(a)Porumalgal people have always enjoyed, and continue to enjoy, their rights to use and occupy the claim area and to exclude others from it and to use and enjoy the natural resources of the land such as animal and plant life. For example, I and my family visit the claim area to hunt for turtle, collect turtle eggs, fish from the beach and collect plant materials for food and other purposes.
(b)Porumalgal people leave their land to their children and others in accordance with their tradition and custom and grant and withhold permission for others to use their land. For example my children will inherit my interest in the land when I die.
(c)Porumalgal people hunt over the land, forage the land, garden the land and generally use the resources of the land. For example, members of my family often collect turtle eggs and birds eggs, and hunt for turtle and birds at Uttu and Yarpar Islands.
(d)Porumalgal people trade and share in their natural resources amongst themselves and trade with others including Papuans, other Torres Strait Islanders and non-indigenous persons. For example, I trade with Papuans on occasion.
(e)Porumalgal people conduct social, religious and economic activities upon the claim area including camping there while engaged in commercial fishing activities, visiting to collect wild foods, or for picnicking.
In her report, Dr Fuary explains that the Poruma People occupied Yarpar from time to time in the past and that they continue to visit Yarpar and Uttu at very regular intervals since having settled on their home island of Poruma.
It is common ground that the Poruma people settled on Poruma permanently but continue to be physically, culturally and spiritually connected to their overall estate, in which Yarpar and Uttu remain significant. The two islands have named places, some of which are sites of mythological activity and, while formal public ceremonies and rituals are not carried out on Yarpar and Uttu, the resources harvested play essential roles in the conduct of Poruma society.
It is also common ground that the Poruma people acknowledge and observe a body of traditional laws and customs which connect them to Yarpar and Uttu and have done so since well before the assertion of sovereignty by the Crown. In particular, it is accepted that there exists among the Poruma people a normative system of laws which have force in their lives and which regulate their access to and use of the islands. This is supported by evidence of the continued use of the area for activities including hunting, fishing and foraging, as well as gardening, picnicking and camping. It is accepted that these rights have been uninterrupted since the assertion of sovereignty by the Crown.
In these circumstances I am quite satisfied that it would be appropriate to make an order in the terms agreed between the parties.
Since the Native Title Act was enacted in 1993, forty-eight determinations that native title exists have been made by this Court, forty of which by consent. Twenty-one of these have been in the Torres Strait. On making the determination sought today there will be twenty five determinations of native title in the Torres Strait. Once again I congratulate the parties for their commitment to the process of negotiation and determination by consent.
Finally, I should emphasise that the order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Poruma people, and that the title is held by those people. The order does not grant native title to the Poruma people; it recognises what they have long held.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.
Associate:
Dated: 15 August 2005

Solicitor for the Applicants: Torres Strait Regional Authority

Solicitor for the State of Queensland: Crown Law

Solicitor for Danny George Brownlow, Guy Stewart and Beverley Joan Bruce, Carl Daguiar, Barry Ehrke, Robert George Giddins, Larry and Pamela Hudson, Richard Laurence Jones, Bob Lamacchia, Noel and Ken Lollback, Robert Bruce Lowden, Steven MacDonald, Mark Millward, Alison Newbold, Peter j Pahlke, Bruce Rose, Karen Skudder, Robert Stefan John Standen, Mark Willis and Barry Wilson: Peter Gore & Associates

Date of Hearing: 15 August 2005

Date of Judgment: 15 August 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6043 of 2001

BETWEEN:	JACK BILLY ON BEHALF OF THE PORUMA PEOPLE APPLICANT
AND:	THE STATE OF QUEENSLAND FIRST RESPONDENT DANNY GEORGE BROWNLOW SECOND RESPONDENT GUY STEWART AND BEVERLEY JOAN BRUCE THIRD RESPONDENT CARL DAGUIAR FOURTH RESPONDENT BARRY EHRKE FIFTH RESPONDENT ROBERT GEORGE GIDDINS SIXTH RESPONDENT LARRY AND PAMELA HUDSON SEVENTH RESPONDENT RICHARD LAURENCE JONES EIGHTH RESPONDENT BOB LAMACCHIA NINTH RESPONDENT NOEL AND KEN LOLLBACK TENTH RESPONDENT ROBERT BRUCE LOWDEN ELEVENTH RESPONDENT STEVEN MACDONALD TWELFTH RESPONDENT MARK MILLWARD THIRTEENTH RESPONDENT ALISON NEWBOLD FOURTEENTH RESPONDENT PETER J PAHLKE FIFTEENTH RESPONDENT BRUCE ROSE SIXTEENTH RESPONDENT KAREN SKUDDER SEVENTEENTH RESPONDENT ROBERT STEFAN JOHN STANDEN EIGHTEENTH RESPONDENT MARK WILLIS NINETEENTH RESPONDENT BARRY WILSON TWENTIETH RESPONDENT
JUDGE:	BLACK CJ
DATE:	15 AUGUST 2005
PLACE:	MELBOURNE

Solicitor for the Applicants:	Torres Strait Regional Authority
Solicitor for the State of Queensland:	Crown Law
Solicitor for Danny George Brownlow, Guy Stewart and Beverley Joan Bruce, Carl Daguiar, Barry Ehrke, Robert George Giddins, Larry and Pamela Hudson, Richard Laurence Jones, Bob Lamacchia, Noel and Ken Lollback, Robert Bruce Lowden, Steven MacDonald, Mark Millward, Alison Newbold, Peter j Pahlke, Bruce Rose, Karen Skudder, Robert Stefan John Standen, Mark Willis and Barry Wilson:	Peter Gore & Associates
Date of Hearing:	15 August 2005
Date of Judgment:	15 August 2005