Saibai People v Queensland [1999] FCA 158 (12 February 1999)

Last Updated: 8 March 1999

FEDERAL COURT OF AUSTRALIA

Saibai People v State of Queensland [1999] FCA 158

SAIBAI PEOPLE v STATE OF QUEENSLAND & ORS

QG 6017 OF 1998

DRUMMOND J

12 FEBRUARY 1999

CAIRNS

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 6017 OF 1998

BETWEEN:

SAIBAI ISLAND COMMUNITY Applicant

AND:

STATE OF QUEENSLAND First Respondent SAIBAI ISLAND COMMUNITY COUNCIL Second Respondent FAR NORTH QUEENSLAND ELECTRICITY CORPORATION Third Respondent TELSTRA CORPORATION LIMITED Fourth Respondent TORRES STRAIT REGIONAL AUTHORITY Fifth Respondent AL MOLLER-NIELSON, BARRY EHRKE, GARY JOHN DUFF, GEOFFREY DONALD McKENZIE, GEOFFREY PAULING, GREG KEITH SVENDSEN, JOHN DEUBLE, KENNETH JAMES McKENZIE, LESLIE TREVOR DELLAWAY, PHILLIP JOHN HUGHES, RAYMOND MOORE, RAYMOND NEIL HANCOCK, THEO PETROU, TONY LUDVIGSSON AND DEBORAH HORNE Sixth Respondents

JUDGE:	DRUMMOND J
DATE OF ORDER:	12 FEBRUARY 1999
WHERE MADE:	CAIRNS

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1. Native title exists in relation to the determination area, that is, the land and inland waters of Saibai Island, Mawalmay Thoera Island, Thawpay Kawamag Island and Kuykuthal Kawamag Island on the landward side of the high water mark, but not including the following:

(a) Lot 31 on Plan TS324 being the Telstra Tower and surrounding land;

(b) The petrol bowsers and tanks situated north of the Telstra Tower;

(c) Part of Lot 3 on Plan TS157 being the Old Canteen Building;

(d) Part of Lot 3 on Plan TS157 being the Old Guest House;

(e) Lot 49 on Plan TS282 described as SL 43/38561 to The Corporation of the Synod of the Diocese of Carpentaria for Church Purposes;

(f) Lot 50 on Plan TS282 being the Church Residence;

(g) Lot 30 on Plan PLD 553 sheet 5 being the Council Hall;

(h) Lot 4 on Plan TS164 being Crown Reserve for State School R.259;

(i) Part of Lot 22 on Plan PLD 553 sheet 5 being the Old Council Chambers;

(j) Part of Lot 22 on Plan PLD 553 sheet 5 being the New Council Chambers;

(k) Lot 16 on Plan TS326 being the Shop;

(l) Part of Lot 15 on Plan TS326 being the Old Health Centre;

(m) Part of Lot 15 on Plan TS326 being the Sister's Residence;

(n) Lot 17 on Plan TS326 being the Health Centre;

(o) The land west of the Teachers' Residences on which the Far North Queensland Electricity Corporation Limited power station is situated including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of that installation;

(p) Lots 63 & 64 on Plan TS328 being the Teachers' Residences;

(q) Lot 5 on Plan TS165 being Crown Reserve for State School R.260;

(r) The area set aside for Council Uses (Water Supply Area and Water Tower) situated east of the Teachers' Residences;

(s) The dam situated south south-east of the Land Ground for Aircraft;

(t) Lot 2 on Plan TS327 being Crown Reserve for Land Ground for Aircraft R.334; and

(u) The roads.

2. The persons holding the communal and group rights comprising the native title ("the common law holders") are the Saibai 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 and subject to their traditional laws and customs and in accordance with Order 6, in particular to:

(a) live on the determination area;

(b) conserve the natural resources of the determination area for the benefit of the common law holders;

(c) maintain, use and manage the determination area for the benefit of the common law holders, that is, to:

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

(ii) inherit, dispose of or give native title rights and interests in the determination area to others;

(iii) decide who are the native title holders, provided that such persons must each be a "Torres Strait Islander" within the meaning of that term in the Native Title Act 1993 (Cth);

(iv) regulate among, and resolve disputes between, the common law holders in relation to the rights of possession, occupation, use and enjoyment of the determination area;

(v) conduct social, religious, cultural and economic activities on the determination area;

(d) conserve, use and enjoy the natural resources of the determination area for social, cultural, economic, religious, spiritual, customary and traditional purposes; and

(e) make decisions about and to control the access to, and the use and enjoyment of, the determination area and its natural resources.

4. The nature and extent of any other interests in relation to the determination area are:

(a) The powers of the Saibai Island Council under the Community Services (Torres Strait) Act 1984 (Qld) to discharge the functions of local government of the area of the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to the Saibai Island Council and exercise the powers of good rule and government thereof in accordance with the customs and practices of the inhabitants of that area;

(b) the interests of the Saibai Island Council and persons under the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to the Saibai Island Council;

(c) the interests of the Far North Queensland Electricity Corporation Limited as an electricity entity exercising statutory powers and as owner and operator of electricity generation, transmission and distribution facilities and associated infrastructure situated on Saibai Island including but not limited to:

(i) the right to enter upon the determination area at any reasonable time in order to access, use, maintain and repair those facilities and infrastructure; and

(ii) its interests under a Deed of Agreement dated 10 February 1999 entered into between the Saibai Mura Buway (Torres Strait Islanders) Corporation, the Far North Queensland Electricity Corporation Limited and other parties;

(d) the interests of the Telstra Corporation Limited as an entity exercising statutory powers and as owner and operator of telecommunication facilities including above and below ground cabling, a radio transmitter and associated infrastructure situated on Saibai Island including but not limited to:

(i) the right to enter upon the determination area in accordance with law; and

(ii) its interests under a Deed of Agreement dated 10 February 1999 entered into between Telstra Corporation Limited, representatives of the Saibailgal (Saibai people), the Saibai Mura Buway (Torres Strait Islanders) Corporation and other parties;

(e) the rights of indigenous inhabitants of Papua New Guinea to enter, live upon and/or use the determination area in accordance with and subject to prior permission under the traditional laws and customs of the common law holders;

(f) the rights of indigenous inhabitants of Dauan Island and Boigu Island to enter, live upon and/or use the determination area in accordance with the traditional laws and customs of the common law holders;

(g) 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 as in force at the date of this determination; and

(h) other interests that may be held by reason of the force and operation of laws of the Commonwealth and of the State of Queensland.

5. The relationship between the native title rights and interests and the other interests in relation to the determination area is as follows:

The native title rights and interests described in Order 3 are exercisable concurrently with the other interests described in Order 4, but in those circumstances where they cannot be so exercised, the entitlements of the holders of the other interests may regulate, control, curtail, restrict, suspend or postpone the exercise of those native title rights and interests.

6. Subject to and in accordance with the traditional laws and customs of the common law holders and subject to the interests referred to in Order 4 and the force and operation of laws of the Commonwealth and of the State of Queensland, the native title rights and interests confer possession, occupation, use and enjoyment of the determination area to the exclusion of all others.

7. The words and expressions used in this order have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions:

(a) "natural resources" means animal, plant, fish and bird life found on or in the determination area from time to time and all water, clays and soils found on or below the surface of the determination area and all other matter comprising the determination area excluding minerals, petroleum, gases, fauna and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and of the State of Queensland;

(b) "fauna" has the meaning given to it in the Fauna Conservation Act 1974 (Qld);

(c) "gas" has the meaning given to it in the Petroleum Act 1923 (Qld);

(d) "minerals" has the same meaning as "mineral" in the Mineral Resources Act 1989 (Qld);

(e) "petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld).

AND THE COURT FURTHER ORDERS THAT:

8. The native title is to be held in trust by the Saibai Mura Buway (Torres Strait Islanders) Corporation.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 6017 OF 1998

BETWEEN:

SAIBAI ISLAND COMMUNITY Applicant

AND:

STATE OF QUEENSLAND First Respondent SAIBAI ISLAND COMMUNITY COUNCIL Second Respondent FAR NORTH QUEENSLAND ELECTRICITY CORPORATION Third Respondent TELSTRA CORPORATION LIMITED Fourth Respondent TORRES STRAIT REGIONAL AUTHORITY Fifth Respondent AL MOLLER-NIELSON, BARRY EHRKE, GARY JOHN DUFF, GEOFFREY DONALD McKENZIE, GEOFFREY PAULING, GREG KEITH SVENDSEN, JOHN DEUBLE, KENNETH JAMES McKENZIE, LESLIE TREVOR DELLAWAY, PHILLIP JOHN HUGHES, RAYMOND MOORE, RAYMOND NEIL HANCOCK, THEO PETROU, TONY LUDVIGSSON AND DEBORAH HORNE Sixth Respondents

JUDGE:	DRUMMOND J
DATE:	12 FEBRUARY 1999
PLACE:	CAIRNS

REASONS FOR JUDGMENT

1 This is an application under s 87 the Native Title Act 1993 (Cth) for orders determining that native title exists in relation to Saibai Island and associated islands which are located in the northern part of Torres Strait. Mediation by the National Native Title Tribunal has proceeded to the stage where agreement has been able to be reached by all parties to the application for native title made on behalf of the Saibai people.

2 The Court is not asked to impose any orders on any of the parties to the case. Instead, the hearing is being held to give effect to the agreement to which reference has already been made between the Saibai people, the Government of Queensland and other persons who each have an interest in the islands in question. By this agreement, all the parties recognise that the Saibai people are the traditional owners. The Saibai people, in turn, recognise that others of the parties have certain rights and interests in their lands.

3 I have considered the material before me and am satisfied that it is appropriate to make orders consistent with those proposed by the parties in their agreement which they filed before the Court which takes the form of a draft determination. As the Attorney-General for the State of Queensland has said, this is the second determination made today. They are the only determinations that have been made so far in respect of islands in the Torres Strait since the Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 decision and it is a matter of some note that they come before this Court in circumstances where consensus has been reached by all people with interest in the lands in question.

4 The Court therefore makes the following orders, declarations and determinations. Firstly, a declaration in terms of par 1 of the draft determination, which is to the effect that native title exists in relation to Saibai Island, Mawalmay Thoera Island, Thawpay Kawamag Island and Kuykuthal Kawamag Island, save for certain areas of land on those islands which it is agreed are not covered by the determination.

5 The Court also makes a declaration in terms of par 2 of the draft determination that the persons holding the communal and group rights comprising the native title, who will be called the common law holders, are the Saibailgal people, also called the Saibai people. The Court also makes a determination in terms of par 3 of the draft, with the proviso to the order in 3(c)(iii) that such persons whom the Saibai people decide as being native title holders are to be, in each case, a "Torres Strait Islander" within the meaning of that phrase in the Native Title Act 1993 (Cth). This second determination is to the effect that 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, subject to some orders I will make in a few moments, but always subject to and in accordance with the traditional laws and customs of the Saibai people.

6 As I have indicated, the agreement recognises the interests of other persons and organisations in the Saibai Island and associated islands, so the Court will make a determination in terms of par 4 of the draft identifying the nature and extent of those interests. They include the rights of indigenous inhabitants of Papua New Guinea to enter, live on and/or use the determination area in accordance with and subject to prior permission of the Saibai people under their traditional laws and customs.

7 The Court also makes a declaration in terms of par 5 of the draft, which will regulate the relationship between the rights of the Saibai people as the native title holders and those other persons I have just referred to in the fourth order who are accepted as having interest in respect of the Saibai Islands and associated lands. The fifth determination the Court makes will be to the effect that the native title rights and interests of the Saibai people are exercisable concurrently with, but subject to, these other rights and interests.

8 The Court also makes a determination in terms of par 6 of the draft, which will be to the effect that always subject to and in accordance with the traditional laws and customs of the Saibai people, and subject to the fourth and fifth orders that I have already referred to and to the laws of the Commonwealth and of the State of Queensland, the native title rights and interests confer possession, occupation, use and enjoyment of Saibai Island and the associated islands on the Saibai people to the exclusion of all others.

9 The Court makes orders in terms of par 7 of the draft, which contain various definitions of terms used in the draft determination; and the Court finally makes an order in terms of par 8 of the draft to the effect that the native title that I have referred to is to be held in trust by the Saibai Mura Buway (Torres Strait Islanders) Corporation.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 12 February 1999

Solicitor for the Applicant:	Mr P Hayes
Counsel for the First Respondent:	The Honourable Attorney-General for the State of Queensland Matt Foley and Mr A Preston
Solicitor for the First Respondent:	Crown Law
Solicitor for the Second Respondent:	Mr P Hayes
Solicitor for the Third Respondent:	McDonnells
Solicitor for the Fourth Respondent:	Holding Redlich
Solicitor for the Fifth Respondent:	Mr P Hayes
Solicitor for the Sixth Respondent:	Clayton Utz
Date of Hearing:	12 February 1999
Date of Judgment:	12 February 1999