Nona and Manas v State of Queensland

Victor Nona and John Manas, on behalf of themselves and the Badualgal and Mualgal Peoples, have applied to the Federal Court of Australia for a determination of native title over various uninhabited islands and islets in the Torres Strait, south of Badu Island and southwest of Mua Island, Queensland. The application was filed on 1 March 2002 under section 61(1) of the Native Title Act 1993 (Cth) and pertains to specific lots identified on Crown Plans TS267, TS272, and TS276. The State of Queensland is the sole respondent to this application.

The primary legal issues before the court were whether the applicants had established a connection to the land and waters in the determination area under the common law of Australia and whether the applicants’ rights and interests in relation to the land and waters in the determination area constituted native title. Additionally, the court had to consider the extent of the rights and interests held by the Badualgal and Mualgal Peoples over the land and waters in the determination area. The applicants needed to demonstrate that their connection to the land was substantial, continuous, and consistent with their traditional laws and customs.

The court found that the applicants had established a strong and continuous connection to the land and waters in the determination area, fulfilling the criteria for native title under the Native Title Act. The applicants’ rights and interests in relation to the land and waters were consistent with their traditional laws and customs, thereby constituting native title. The court concluded that the Badualgal and Mualgal Peoples held exclusive rights to possession, occupation, use, and enjoyment of the land in the determination area, to the exclusion of all others. However, the native title in relation to water was limited to the right to hunt, fish, and gather from the water for personal, domestic, or non-commercial communal needs, without conferring the right to exclude others from the water.

The court made a determination that the Badualgal and Mualgal Peoples hold exclusive rights to the land in the determination area and specified rights in relation to the water. The State of Queensland was ordered to recognise and protect the native title rights and interests of the Badualgal and Mualgal Peoples in accordance with the terms of the determination.