Newie on behalf of the Gebaralgal v State of Queensland

[2004] FCA 1577

FEDERAL COURT OF AUSTRALIA

Newie on behalf of the Gebaralgal v State of Queensland [2004] FCA 1577

NATIVE TITLE – determination of – by consent – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate

MICHEALANGELO NEWIE, SAM KRIS, JOHN LEVI, JOHN LOVEMAN, DICK PETERS AND STEVEN PETERS ON BEHALF OF THE GEBARALGAL v STATE OF QUEENSLAND

QG6066 of 1998

COOPER J

YAM ISLAND, TORRES STRAIT
13 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG6066 OF 1998

BETWEEN:	MICHEALANGELO NEWIE, SAM KRIS, JOHN LEVI, JOHN LOVEMAN, DICK PETERS AND STEVEN PETERS ON BEHALF OF THE GEBARALGAL APPLICANTS
AND:	STATE OF QUEENSLAND RESPONDENT

JUDGE:	COOPER J
DATE:	13 DECEMBER 2004
PLACE:	YAM ISLAND, TORRES STRAIT

REASONS FOR JUDGMENT

Background

1. 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’). Michealangelo Newie, Sam Kris, John Levi, John Loveman, Dick Peters and Steven Peters were the original named applicants in this claim made on behalf of the people of Gebara Island in the Torres Strait and all of these original named applicants have continued to act as such in this proceeding up until today, which sees the final resolution of this matter. The only respondent to this determination application is the State of Queensland.

2. The determination application shows the claim area as the land and waters on the landward side of the high water mark of Lot 43 on Plan TS216 in the Parish Umaga, County of Torres in the State of Queensland, referred to as Gebara Island, Gabba Island or Two Brothers Island.

3. The parties to the claim have mediated the issues which arose under the application to the point where they have agreed to a consent determination.  The agreement concerns exclusive and non-exclusive rights of possession, occupation, use and enjoyment of the lands and waters in the claim area.  This agreement is subject to the Court being satisfied that it has the power to make the determination sought and that it is proper to do so.

   Power of the Court

4. This Court has jurisdiction to hear and determine applications for a determination of native title in relation to an area for which there is no approved determination of native title: ss 13, 61 and 81 of the Act. Division 1C of Part 4 of the Act provides for agreements, to be made by some or all of the parties to an application, to settle the application or part of it.

5. Section 87 of the Act provides that the Court may, if it is satisfied that such an order is within the power of the Court, make an order in, or consistent with, the terms of the parties’ written agreement without holding a hearing.

6. Section 94A of the Act requires that an order of this Court which makes a determination of native title must set out details of the matters mentioned in s 225 of the Act. Section 225 provides:

   ‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

   (a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

   (b)the nature and extent of the native title rights and interests in relation to the determination area; and

   (c)the nature and extent of any other interests in relation to the determination area; and

   (d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

   (e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

   Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.’

   (original emphasis)

   Consideration of Agreement and Draft Determination

7. In considering whether it is appropriate to make the orders that the parties seek, I have had the benefit of an affidavit of Mr Dick Fred Peters filed on 29 November 2004.  Mr Peters is a member of the native title claim group and a named applicant.  I have also had the benefit of an anthropological report prepared on behalf of the applicants in August 2000 by Dr Julie Lahn and filed on 19 November 2004.  Dr Lahn is presently working as a postdoctoral fellow at the Australian National University.  In the past she has worked as a consultant anthropologist while living among the people of the Torres Strait.

8. Dr Lahn explains in her report that the people of Gebara Island were a mobile group that moved between neighbouring islands while maintaining a connection with Gebara.  The claim group has a collective connection through their attachment to Gebara that intersects with individually differentiated ties with other places.  People in the Torres Strait are regularly connected to more than one island.  For example, in addition to identification with a ‘home island’, a person will most likely also have genealogical attachments to other places.

9. Dr Lahn states that it is doubtful that an autonomous group of people were sedented on Gebara given the proximity to the islands of Tudu, Yam, Muquar and Zegei.  In the nineteenth century people were extremely mobile; their use of and connection to various islands was based around movement between owned islands. However, the claimants share an enduring connection to Gebara Island, possess a long association with the island and express strong sentiments concerning the place.  This sentiment stems from their inherited rights through traditional laws and customs as owners of Gebara.  People with connections to Gebara have maintained their relationship to place through storytelling, recalling place names, gardening, oral transmission of genealogical knowledge of Gebara ancestors and visits which require the observation of behavioural protocols.  The people have also maintained their connection to and knowledge of sea space (including its resources) through continued participation in marine industries.

10. Indeed, the continuing connection between the Gebaralgal and the determination area is well recognised.  Mr Dick Peters has deposed in support of the Gebaralgal’s native title rights over the determination area:

    ‘4.       The Iama and Tudulaig people are our countrymen and kinfolk with the Gebaralgal being the custodians of the crossroads between two bodies of water, the Magan and Dogai passes.  In this way, the Gebaralgal have a special role and place in our region.

    5.        The traditional land owners have an acknowledged system of traditional laws and customs which they have observed and continue to observe relating to, among other things, land ownership.  These laws and customs determine who are the rightful owners of particular parcels of land, how such ownership may rightfully pass from one person to another and collectively recognise the continuing traditional associations with the claim area of the Gebaralgal.

    6.        In support of some of the rights included as part of the continuing traditional inheritance of Gebaralgal people and therefore as part of their native title rights, I confirm that:

    (a)      Gebaralgal have always enjoyed, and continue to enjoy, their rights to use, occupy and live on their land and to exclude others from it and to use and enjoy the natural resources of the land such as animal and plant life.  For example, my family and I frequently visit Gebar to hunt for turtle, collect turtle eggs, fish from the beach and collect plant materials for food and other purposes;

    (b)      Gebaralgal 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, I pass on my knowledge of Gebaralgal traditional law and custom to my children and my family will inherit my land on Gebar when I die;

    (c)       Gebaralgal hunt over the land, forage the land, garden the land and generally use the resources of the land albeit in somewhat changing ways over the years.  For example, members of my family often collect turtle eggs and we always stop there to collect fresh water from the system of wells at Gebar.

    (d)      Gebaralgal trade and share in their natural resources amongst themselves and trade with others including Papuans, other Torres Strait Islanders and non-indigenous persons; and

    (e)       Gebaralgal conduct social, religious and economic activities upon the claim area including the visiting of cultural sites of significant, conducting burials and tomb stone openings, participating in festivals and associated traditional dancing and being responsible on a daily basis for the care of the land.  For example, I sometimes visit sites of cultural significance at Gebar, and I visit the graves of my ancestors at Gebar.  I also practice certain traditions that signify my connection to Gebar to ensure my and others’ safety when they are visiting Gebar.  These practices also ensure that a plentitude of natural resources exist when we visit Gebar to harvest those resources.’

11. I accept the evidence contained in Mr Peters’ affidavit and the opinions contained in Dr Lahn’s report.  I am satisfied that:

    (a)native title exists in relation to the lands and waters identified in the draft determination agreed to by the parties;

    (b)the members of the claimant group referred to as the Gebaralgal are members of a society of peoples descended from the Torres Strait Islander peoples who as a society at the time of sovereignty occupied the lands and waters identified in the draft determination in accordance with traditional laws and customs acknowledged and observed by them;

    (c)the laws and customs acknowledged and observed by the society at sovereignty are continued to be acknowledged and observed by the members of the claim group and have been acknowledged and observed by their predecessors from the time of sovereignty to the present time;

    (d)the members of the claim group and their predecessors through their continued acknowledgement and observance of the traditional laws and customs which existed at the time of sovereignty, have maintained since that time a connection to the determination area;

    (e)the native title rights and interests in the determination area are held by the persons who are or are entitled to be or become members of the claim group called the Gebaralgal; and

    (f)the nature and extent of the exclusive and non-exclusive native title rights and interests in relation to the determination area are as set out in the agreed draft determination.

12. I am also satisfied on the materials that there are other interests in and in relation to the determination area.  Those interests and their relationship with the native title interests are set out in Schedule 3 of the agreed draft determination.

    Orders and Determination

13. The proposed Orders, which are consistent with the terms agreed by the parties, recognise that the Gebaralgal, as the common law holders of the native title, are entitled to possess, occupy, use and enjoy the land and waters of the determination area, in accordance with their traditional laws and customs. The proposed Orders also recognise the other interests in the lands and waters in the determination area and the relationship of those interests with the native title interests. The proposed Orders contain the elements required by s 94A and s 225 of the Act.

14. I am satisfied that it is within the power of the Court to make the Orders sought and that these Orders can appropriately be made to give effect to the parties’ agreement without a full hearing of the determination application.  I therefore make the Orders and determination attached as the Appendix to these reasons.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:            13 December 2004

Solicitor for the Applicant:	Torres Strait Regional Authority
Solicitor for the State of Queensland:	Crown Solicitor

APPENDIX
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

No. QG 6066 of 1998

MICHEAL ANGELO NEWIE, SAM KRIS, JOHN LEVI, JOHN LOVEMAN, DICK PETERS AND STEVEN PETERS ON BEHALF OF THE GEBARALGAL PEOPLE

Applicant

STATE OF QUEENSLAND

Respondent

ORDER

JUDGE:  
DATE OF ORDER:    
WHERE MADE:         

THE COURT ORDERS BY CONSENT THAT:

1.Native title exists in relation to the land and waters on the landward side of the High Water Mark of Lot 43 on Plan TS216 referred to as Gebara Island, Gabba Island or Two Brothers Island and shown on the plan in Schedule 1 (“the Determination Area”).

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

3.Subject to paragraphs 4 and 5, the native title is a right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others.

4.Subject to paragraph 5, the native title in relation to Water is a non-exclusive right to:

(a)hunt and fish in or on, and gather from, the Water for the purpose of satisfying personal, domestic or non-commercial communal needs; and

(b)take, use and enjoy the Water for the purpose of satisfying personal, domestic or non-commercial communal needs.

The native title in relation to Water does not confer possession, occupation, use and enjoyment of the Water on the Native Title Holders to the exclusion of all others.

5.The native title is subject to and exercisable in accordance with:

(a)the laws of the Commonwealth of Australia and the State of Queensland including the common law; and

(b)traditional laws acknowledged and traditional customs observed by the Native Title Holders.

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

7.The relationship between the native title and the other interests referred to in paragraph 6 is that:

(a)the other interests continue to have effect and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of native title; and

(b)the other interests and any activity done in exercise of the rights conferred by or held under the other interests prevail over the native title and any exercise of the native title.

8.If a word or expression is not defined in this order, but is defined in the Native Title Act 1993 (Cth) then it has the meaning given to it in the Native Title Act 1993 (Cth). In addition to the other words defined in this order:

(a)“High Water Mark” has the meaning given to it in the Land Act 1994 (Qld);

(b)“Local Government” has the meaning given to it in the Local Government Act 1993 (Qld); and

(c)“Water” has the meaning given to it in the Water Act 2000 (Qld).

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

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

Date that entry is stamped:

.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

Deputy District Registrar

SCHEDULE 1

NATIVE TITLE DETERMINATION PLAN

SCHEDULE 2
NATIVE TITLE HOLDERS

The Gebaralgal, being:

(a)The descendants of one or more of the following ancestors:  Kelam, Rusia, Kebisu, Porrie Daniel, Gawadi, Ausa or Auda, being members of the Luffman, Whap, Kris, Levi, David, Daniels, Kelly, Kepa, Baluz and Samuel families; 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 Urapun Tubudal Gal Land Trust and the beneficiaries under deed of grant No. 40032520;

(b)the interests, powers and functions of the Torres Shire Council as Local Government for Lot 43 on Plan TS216;

(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.