Mye v Queensland - [2004] FCA 1573

FEDERAL COURT OF AUSTRALIA
Mye on behalf of the Erubam Le v State of Queensland
[2004] FCA 1573
NATIVE TITLE – determination of – by consent – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate
GEORGE MYE ON BEHALF OF THE ERUBAM LE v STATE OF QUEENSLAND AND OTHERS
QG6036/98
COOPER J
ERUB ISLAND, TORRES STRAIT
8 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG6036 OF 1998

BETWEEN:

GEORGE MYE ON BEHALF OF THE ERUBAM LE APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

AUSTRALIAN MARITIME SAFETY AUTHORITY
SECOND RESPONDENT

TORRES STRAIT REGIONAL AUTHORITY
THIRD RESPONDENT

ERGON ENERGY CORPORATION LIMITED
FOURTH RESPONDENT

TELSTRA CORPORATION LIMITED
FIFTH RESPONDENT

QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION INC
SIXTH RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

8 DECEMBER 2004

WHERE MADE:

ERUB ISLAND, TORRES STRAIT

REASONS FOR JUDGMENT
Background

This proceeding arises out of an application for determination of native title filed on 18 June 1996 in accordance with the procedures set out in the Native Title Act 1993 (Cth) (‘the Act’). Mr George Mye, a traditional Erub elder, was named as the applicant on this original application and Mr Mye has continued to act as the named applicant in this proceeding up until today, which sees the final resolution of this matter. Mr Mye makes this claim made on behalf of his people of Erub Island in the Torres Strait. The main respondent to this determination application is the State of Queensland.
Erub island is situated in the deeper waters of eastern Torres Strait, where the Great Barrier Reef ends. Erub is a high island with numerous volcanic rock outcroppings, thickly vegetated areas and rich deep soils. The determination application shows the claim area as comprising the land and waters on the landward side of the high water mark of:
‘(a)Lot 4 on Plan TS156 being part of the island referred to as Darnley Island excluding the areas described as:
(i)        Lease T on Deposited Plan 175712 in Lot 4 on Plan TS156; and
(ii)       Lease F on Deposited Plan 150247 in Lot 4 on Plan TS156;
(b)      Lot 63 on Plan TS66 referred to as Nepean Island;
(c)       Lot 58 on Plan TS226 referred to as Tobin Cay;
(d)      Lot 2 on Plan AP8356 referred to as Rebes or Black Rocks;
(e)       Lot 57 on Plan TS225 referred to as Underdown Islet; and
(f)Lot 59 on Plan TS227 being part of the cay referred to as Bramble Cay.’
The determination application also lists certain areas as not covered by the claim. Those areas are:
‘Lot 5 on Plan TS 160, Lot 6 on Plan TS181, Lot 64 on Plan TS285, Lot 1 on Plan TS80, Lot 7 on Crown Plan 899009, Lease T on Deposited Plan 175712 in Lot 4 on Plan TS156, Lease F on Deposited Plan 150247 in Lot 4 on Plan TS156 and all Roads.’
The original application was amended, and was further amended by a native title determination application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mye v Queensland

Details

AGLC: Mye v Queensland [2004] FCA 1573
Case: [2004] FCA 1573
Decision Date: 8 DECEMBER 2004

CaseChat Overview and Summary

The case before the court involved an application by the applicant, Mye, seeking a determination of native title over certain land in Queensland. The parties agreed on the determination of native title by consent, and the primary issue for the court was whether an order under section 87 of the Native Title Act 1993 (Cth) was appropriate given the circumstances. The court needed to consider the nature of the agreement, the extent to which the order would facilitate the recognition and protection of the native title rights and interests, and whether it aligned with the objectives of the Act.

The court examined the terms of the consent determination and the implications of making an order under section 87. It noted that such an order would provide a clear and binding recognition of the native title rights and interests, which could assist in resolving future disputes and promoting co-operation between the parties. The court also considered the statutory objectives of the Act, including the reconciliation of native title rights and interests with the rights and interests of other persons. After careful consideration, the court found that the order was appropriate as it would provide clarity and facilitate the ongoing management of the land in accordance with the native title rights and interests.

The court ultimately made an order under section 87, determining the native title rights and interests as agreed by the parties. The order provided a formal recognition of the native title and outlined the rights and obligations of the parties. This decision ensured that the native title rights and interests were protected and could be effectively managed in the future. The final orders reflected the terms of the consent determination and provided a framework for the parties to work together in the management of the land.

Orders