Passi v Queensland

Case [2001] FCA 697

FEDERAL COURT OF AUSTRALIA

Andrew Passi on behalf of the Meriam People v State of Queensland
[2001] FCA 697

NATIVE TITLE – consent determination – whether it is appropriate to make an order under s 87 of the Native Title Act 1993 (Cth) – whether it is necessary to determine whether native title has been extinguished – whether s 47 of the Native Title Act 1993 (Cth) applies

Rubibi Community & Anor v The State of Western Australia & Ors [2001] FCA 607 applied
Western Australia v Ward (2000) 99 FCR 316 applied
Wacando v Commonwealth (1981) 148 CLR 1 discussed
Mabo v Queensland [No 1] (1988) 166 CLR 186 discussed
Mabo v Queensland [No 2] (1992) 175 CLR 1 considered
Mabo v Queensland [1992] 1 Qd R 78 noted

Queensland Coast Islands Act 1879 (Qld)
Colonial Boundaries Act 1895 (Imp)
Land Act 1910 (Qld)
Land Act 1962 (Qld)
Native Title Act 1993 (Cth) ss 47A, 56(2(a), 87, 94A, 225

Bryan Keon-Cohen, ‘The Mabo Litigation: a personal and procedural account’ (2000) 24 Melbourne University Law Review 893

ANDREW PASSI ON BEHALF OF THE MERIAM PEOPLE V STATE OF QUEENSLAND
QG 6204 of 1998

BLACK CJ
DAUAR ISLAND in the TORRES STRAIT
14 JUNE 2001


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG6204 OF 1998

BETWEEN:

ANDREW PASSI ON BEHALF OF THE MERIAM PEOPLE
APPLICANT

AND:

STATE OF QUEENSLAND
RESPONDENT

JUDGE:

CHIEF JUSTICE BLACK

DATE OF ORDER:

14 JUNE 2001

WHERE MADE:

DAUAR ISLAND in the TORRES STRAIT

THE COURT ORDERS, DECLARES AND DETERMINES WITH THE CONSENT OF THE PARTIES THAT:

1.   Native title exists in relation to the area as shown on the attached Native Title Determination Plan Number AP5177, that is, the whole of the land and inland waters of Waier Island (Lot 55 on CP 846896) and Dauar Island  (Lot 1 on CP 846896) on the landward side of the high water mark (“determination area”). 

2.   The persons holding the communal and group rights comprising the native title (“the common law holders”) are the Meriam 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 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 by:

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

(ii)inheriting, disposing of or giving 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)deciding who are the common…

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Passi v Queensland [2001] FCA 697
Case
[2001] FCA 697
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Passi v Queensland involves a native title claim brought by Mr Andrew Passi on behalf of the Meriam people against the State of Queensland. The claim pertains to the land and inland waters of Dauar and Waier islands, part of the Murray Island group in the Eastern Torres Strait. The original application was lodged with the National Native Title Tribunal before being transferred to the Federal Court due to legislative changes. After amendments to the application and a successful mediation process, the parties reached an agreement recognising native title and the Meriam people's rights, which is now subject to court approval.

The central legal issues addressed by the court were whether the Federal Court had the jurisdiction to make an order in accordance with the terms of the parties' written agreement under the Native Title Act 1993 and whether such an order could be made without a formal hearing. The court also needed to determine if it was appropriate to detail the necessary components of the order as required by section 225 of the Act.

The court held that it had the jurisdiction to make an order consistent with the parties' written agreement and that it was not necessary to hold a hearing to approve the order. It found that the application of section 87 of the Act allowed for such an order to be made without a hearing, provided the court was satisfied with the terms. The court also noted that while section 94A required certain details to be included in the order, these details could be incorporated directly into the order itself rather than through a separate hearing. Consequently, the court granted the order as requested by the parties, recognising the Meriam people's native title rights over the specified area.

The final orders of the court approved the agreement between the Meriam people and the State of Queensland, recognising the Meriam people's native title rights over the land and inland waters of Dauar and Waier islands, and incorporated the necessary details as required by the Native Title Act 1993.

Orders

Orders of the court

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Background

Background to the litigation

This proceeding arises out of an application for a determination of native title made by Mr Andrew Passi on behalf of the Meriam people. The respondent is the State of Queensland. The claim area comprises the land and inland waters of the islands of Dauar and Waier, which together with the island of Mer comprise the Murray Island group in the Eastern Torres Strait. Background of the application The original application was lodged with the National Native Title Tribunal (“the Tribunal”) on 24 June 1998, shortly before the amendments to the Native Title Act 1993 (Cth) (“the Act”) made by the Native Title Amendment Act 1998 (Cth) came into force. By reason of the transitional provisions contained in Part 3 of Schedule 5 of the Amendment Act, the original application was deemed to have been made to the Federal Court of Australia on 30 September 1998. The original application named the applicants as Sam Wailu, James Rice, Andrew Passi, Fredwin Barsa and Terry Tapim, all of Murray Island, and George Kaddy of Townsville, on behalf of the Dauwereb people who are a subgroup of the Meriam people. The original application was accompanied by maps of the claimed area. Affidavits in support of the original application were sworn by each of the individual applicants and lodged with the Tribunal on the same day that the original application was lodged. The matter first came before the Court on 20 August 1999 for a directions hearing before Dowsett J. No orders were made at that time. On 8 February 2000 the Court granted leave to amend the original application by substituting the current application which names Andrew Passi as the applicant on behalf of the Meriam people. In Schedule A of the current application it is stated that there are within the Meriam group people who have particular interests in the islands of Dauar and Waier and the genealogy of some of those people is set out. On 14 February 2000, an amended certification was received from the Native Title Representative Body, the Torres Strait Regional Authority, which stated that Andrew Passi has authority to make the application on behalf of all other persons in the native title claim group. A further directions hearing was held on 26 October 2000 at which the matter was referred to the Tribunal for mediation in accordance with s 86B of the Act. The mediation was successful and the parties have reached an agreement that recognises that native title exists in relation to the determination area and that the Meriam people are the common law holders of that title. They have prepared a document that sets out the terms of their agreement. The document is signed by the legal representatives of the parties and was filed with the Court on 12 June 2001. The parties have applied to the Court for an order in accordance with the terms set out in the agreement and that is the matter before the Court here on Dauar Island today.Power of the court 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. Section 94A requires that the Court set out in such an order details of the matters referred to in s 225 of the Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLACK CJ

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Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ

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