FEDERAL COURT OF AUSTRALIA Poruma People v State of Queensland [2000] FCA 1066 PORUMA PEOPLE v STATE OF QUEENSLAND, TORRES STRAIT REGIONAL AUTHORITY, TELSTRA CORPORATION LIMITED, ERGON ENERGY CORPORATION LIMITED & OTHERS QG 6087 OF 1998 WARRABER PEOPLE v STATE OF QUEENSLAND, TORRES STRAIT REGIONAL AUTHORITY, AUSTRALIAN MARITIME SAFETY AUTHORITY, TELSTRA CORPORATION LIMITED, ERGON ENERGY CORPORATION LIMITED & OTHERS QG 6073 OF 1998 DRUMMOND J 7 JULY 2000 PORUMA ISLAND IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 6087 OF 1998 BETWEEN: PORUMA PEOPLE APPLICANT AND: STATE OF QUEENSLAND FIRST RESPONDENT TORRES STRAIT REGIONAL AUTHORITY SECOND RESPONDENT TELSTRA CORPORATION LIMITED THIRD RESPONDENT ERGON ENERGY CORPORATION LIMITED FOURTH RESPONDENT AL MOLLER-NIELSEN, BARRY EHRKE, BARRY WILSON, BERNARD BRADLEY, BRUCE ROSE, CARL D'ARGUIAR, DARYL O'HANLON, FRANK SWINBURNE, MARK MILLWARD, MARK WILLIS, NEVILLE DAVIES, PAUL GREEN, PHILLIP HUGHES FIFTH RESPONDENTS JUDGE: DRUMMOND J DATE OF ORDER: 7 JULY 2000 WHERE MADE: PORUMA ISLAND THE COURT ORDERS BY CONSENT THAT: 1. Native title exists in relation to the determination area as shown on the map annexed to this Order and marked "Annexure A", that is, the land and inland waters of Poruma (Coconut) Island being Lot 6 on Plan TS 166 on the landward side of the high water mark but not including the following areas as shown on the map annexed to this Order and marked "Annexure B": (a) Lot 7 on Plan TS 167; (b) Lot 8 on Plan TS 167; (c) The Roads as more particularly shown on the map annexed to this Order; (d) The land north-east of the Council office and abutting the Council compound on which the Telstra mast and equipment shelter are situated, including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation; (e) The land on which Ergon Energy Corporation 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 the installation being Lease P in SP127309; and (f) The Airstrip being Lot 37 on Plan TS201. 2. The persons holding the communal and group rights comprising the native title ("the common law holders") are the Porumalgal (the Poruma 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 Order 6 but always subject to and 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, 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, being members of the common law holders pursuant to their traditional laws and customs; (iii) decide who are the native title holders provided that such persons must be Torres Strait Islanders 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; and (d) make decisions about and to control the access to, and the use and enjoyment of, the determination area and its natural resources being 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 and petroleum 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. 4. The nature and extent of any other interests in relation to the determination area are: (a) the powers of the Coconut 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 Coconut 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 Coconut Island Council and persons under the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to Coconut Island Council; (c) the interests of Ergon Energy Corporation Limited as an entity exercising statutory powers and as owner and operator of electricity generation, transmission and distribution facilities on Poruma Island, including: (i) the right to enter upon the determination area in accordance with the law; and (ii) its interests under a Deed of Agreement dated 28 June 2000 between it and representatives of the common law holders. (d) the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner and operator of telecommunication facilities on Poruma Island, including: (i) the right to enter upon the determination area in accordance with the law; and (ii) its interests under a Deed of Agreement dated 27 June 2000 between it and representatives of the common law holders. (e) the interests of indigenous Papua New Guinea persons in having access to the determination area for traditional purposes; (f) the rights of indigenous inhabitants of Warraber 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; (h) the interests of the holders of leases validly existing at the date of this determination and issued under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld); and (i) 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. (i) The relationship between the native title rights and interests in Order 3 and the other interests in relation to the determination area in Order 4 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. (ii) The native title rights and interests of the Porumalgal are subject to extinguishment by either: (a) the lawful powers of the Commonwealth and the State of Queensland; or (b) lawful grants or creation of interests pursuant to the laws of the Commonwealth and the State of Queensland. 6. Subject to and in accordance with the traditional laws and customs of the common law holders and the effect and operation of the laws of the Commonwealth and of the State of Queensland and, to the extent that the interests referred to in Order 4 prevent or limit it, 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 and petroleum 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) "minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld); (c) "petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld); and (d) "high water mark" has the meaning given to it in the Land Act 1994 (Qld). BY CONSENT IT IS FURTHER AGREED THAT: 8. The native title is to be held in trust by the Porumalgal (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 6073 OF 1998 BETWEEN: WARRABER PEOPLE APPLICANT AND: STATE OF QUEENSLAND FIRST RESPONDENT TORRES STRAIT REGIONAL AUTHORITY SECOND RESPONDENT AUSTRALIAN MARITIME SAFETY AUTHORITY THIRD RESPONDENT TELSTRA CORPORATION LIMITED FOURTH RESPONDENT ERGON ENERGY CORPORATION LIMITED FIFTH RESPONDENT AL MOLLER-NIELSEN, BARRY EHRKE, BARRY WILSON, BERNARD BRADLEY, BRUCE ROSE, CARL D'ARGUIAR, DARYL O'HANLON, FRANK SWINBURNE, MARK MILLWARD, MARK WILLIS, NEVILLE DAVIES, PAUL GREEN, PHILLIP HUGHES SIXTH RESPONDENTS JUDGE: DRUMMOND J DATE OF ORDER: 7 JULY 2000 WHERE MADE: PORUMA ISLAND THE COURT ORDERS BY CONSENT THAT: 1. Native title exists in relation to the determination area as shown on the map annexed to this Order and marked "Annexure A", that is, the land and inland waters of Warraber (Sue) Island being Lot 4 on Plan TS 171, Guiar Islet being Lot 5 on Plan TS 171, Bubui (Lowry) Islet being Lot 29 on Plan TS 232, Ulu (Saddle) Island being Lot 24 on Plan TS 232, Bara Island being Lot 3 on Plan TS 171, Ugain (Ninepin) Rock being Lot 34 on Plan TS 244, Miggi-Maituin (Meggi-Maituine) Island being Lot 27 on Plan TS 273, Dugong Islet being Lot 28 on Plan TS 278 and Lots 14, 46, 47, 48 & 49 on Plan USL 36706 and Lot 1 on Plan CP 901423 on the landward side of the high water mark but not including the following areas as shown on the map annexed to this Order and marked "Annexure B": (a) Lot 6 on Plan TS 176; (b) Lot 7 on Plan TS 176; (c) The Roads as more particularly shown on the map annexed to this Order; (d) The land east of the barge landing on which the Telstra mast and equipment shelter are situated, including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation; (e) The land on which Ergon Energy Corporation 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 the installation being Lease P in SP127310; and (f) The Airstrip as contained in Lot 8 on Plan TS 314. 2. The persons holding the communal and group rights comprising the native title ("the common law holders") are the Warraberalgal (the Warraber 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 Order 6 but always subject to and 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, 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, being members of the common law holders pursuant to their traditional laws and customs; (iii) decide who are the native title holders provided that such persons must be Torres Strait Islanders 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; and (d) make decisions about and to control the access to, and the use and enjoyment of, the determination area and its natural resources being 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 and petroleum 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. 4. The nature and extent of any other interests in relation to the determination area are; (a) the powers of the Sue 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 Sue 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 Sue Island Council and persons under the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to Sue Island Council; (c) the interests of Ergon Energy Corporation Limited as an entity exercising statutory powers and as owner and operator of electricity generation, transmission and distribution facilities on Warraber Island, including: (i) the right to enter upon the determination area in accordance with the law; and (ii) its interests under a Deed of Agreement dated 28 June 2000 between it and representatives of the common law holders. (d) the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner and operator of telecommunication facilities on Warraber Island, including: (i) the right to enter upon the determination area in accordance with the law; and (ii) its interests under a Deed of Agreement dated 27 June 2000 between it and representatives of the common law holders. (e) the interests of indigenous Papua New Guinea persons in having access to the determination area for traditional purposes; (f) the interests of Australian Maritime Safety Authority as owner and operator of a navigational aid facility on Warraber Island, including: (i) the right to enter upon the determination area in accordance with the law; and (ii) its interests under a Deed of Agreement dated 27 June 2000 between it and representatives of the common law holders. (g) the rights of indigenous inhabitants of Poruma Island to enter, live upon and/or use the determination area in accordance with the traditional laws and customs of the common law holders; (h) the rights of the Gau Land Trust pursuant to a Deed of Grant in Trust taking effect on 22 August 1998 under the Torres Strait Islander Land Act 1991 (Qld); (i) 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 (j) 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. (i) The relationship between the native title rights and interests in Order 3 and the other interests in relation to the determination area in Order 4 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. (ii) The native title rights and interests of the Warraberalgal are subject to extinguishment by either: (a) the lawful powers of the Commonwealth and the State of Queensland; or (b) lawful grants or creation of interests pursuant to the laws of the Commonwealth and the State of Queensland. 6. Subject to and in accordance with the traditional laws and customs of the common law holders and the effect and operation of the laws of the Commonwealth and of the State of Queensland and, to the extent that the interests referred to in Order 4 prevent or limit it, 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 and petroleum 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) "minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld); (c) "petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld); and (d) "high water mark" has the meaning given to it in the Land Act 1994 (Qld). BY CONSENT IT IS FURTHER AGREED THAT: 8. The native title is to be held in trust by the Warraberalgal (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 6087 OF 1998 BETWEEN: PORUMA PEOPLE APPLICANT AND: STATE OF QUEENSLAND FIRST RESPONDENT TORRES STRAIT REGIONAL AUTHORITY SECOND RESPONDENT TELSTRA CORPORATION LIMITED THIRD RESPONDENT ERGON ENERGY CORPORATION LIMITED FOURTH RESPONDENT AL MOLLER-NIELSEN, BARRY EHRKE, BARRY WILSON, BERNARD BRADLEY, BRUCE ROSE, CARL D'ARGUIAR, DARYL O'HANLON, FRANK SWINBURNE, MARK MILLWARD, MARK WILLIS, NEVILLE DAVIES, PAUL GREEN, PHILLIP HUGHES FIFTH RESPONDENTS QG 6073 OF 1998 BETWEEN: WARRABER PEOPLE APPLICANT AND: STATE OF QUEENSLAND FIRST RESPONDENT TORRES STRAIT REGIONAL AUTHORITY SECOND RESPONDENT AUSTRALIAN MARITIME SAFETY AUTHORITY THIRD RESPONDENT TELSTRA CORPORATION LIMITED FOURTH RESPONDENT ERGON ENERGY CORPORATION LIMITED FIFTH RESPONDENT AL MOLLER-NIELSEN, BARRY EHRKE, BARRY WILSON, BERNARD BRADLEY, BRUCE ROSE, CARL D'ARGUIAR, DARYL O'HANLON, FRANK SWINBURNE, MARK MILLWARD, MARK WILLIS, NEVILLE DAVIES, PAUL GREEN, PHILLIP HUGHES SIXTH RESPONDENTS JUDGE: DRUMMOND J DATE: 7 JULY 2000 PLACE: PORUMA ISLAND REASONS FOR JUDGMENT 1 I have before me two applications for determinations of native title, one by the Poruma people and one by the Warraber people. Though the determinations are to be made by consent, the Court is required by the provisions of the Native Title Act 1993 (Cth) to be satisfied that it is proper to make orders in terms of what the parties propose. 2 The European history of these islands going back to before they were annexed by the then Colony of Queensland in 1872 attests to the fact that they were the home of various native families and groups. For example, in December 1849, one of the officers of Captain Owen Stanley's ship, HMS Rattlesnake, landed on Warraber and he wrote this description in his journal of what he saw: "It is of coral sand formation, low and thickly wooded. Some coconut trees grow at the west end of the island, where there is a native village. It consists of several long huts thatched with grass. Many of the people, both men and women, ran down to the beach, waving green branches to induce us to land. Others were sitting down under temporary sheds made by stretching large mats, the sails of their canoes, over a framework of sticks. The inside of one large enclosure was concealed by a fence six feet high and an adjacent shed under which some cooking was going on, completely covered with some recent shells of turtle, apparently about 30 in number. Three very large canoes were hauled up on the beach, protected from the sun by matting. Two smaller ones were kept afloat." 3 It needs but little imagination to confirm by observations today that we are in the same place. A little while later, Captain Robert Fraser, of "The Lady Peel", passed, but did not land on, Poruma. He saw, however, something of the people of that island. He noted in his journal that Coconut Island was deserving of mention because of the fine grove of coconuts, and it was inhabited: "The natives were in great agitation and seemed to be splitting their very lungs to induce me to stop, but I passed them like a flying cloud. They frequently had tortoiseshell in considerable quantities to trade away for tools. There was but one boat on the beach." 4 That these islands were inhabited by the native peoples is not only established by the recollections of the people who live here today, but also by the observations of early seafarers and traders. 5 The law which came to this country in the wake of those traders, originally the common law of England, now the common law of Australia, today, by order of this Court, acknowledges that the people of Poruma and Warraber gathered here today as the descendants of the men and women who lived on these islands when those early seafarers passed by are the traditional owners. The evidence is amply sufficient to satisfy the Court that the people living on these islands today are the descendants of those who lived on these same lands prior to annexation in 1872. 6 Members of the Poruma people and the Warraber people are closely connected by ties of kinship and common language. They both continue to live under an ongoing system of land tenure that predates annexation. As part of this continuing system of land tenure, the Warraber and Poruma islanders continued to exercise and enjoy the rights, to gather, hunt, fish, camp, garden, live, manage, maintain and visit each other's land the subject of the present claims. Continuous physical connection with the lands the subject of these claims is well established. Further, the peoples of these islands maintain their traditional trading practices. Frequent exchanges of trade continue to this day with people as far afield as those in Papua New Guinea. 7 The Court is well satisfied that orders in terms of the draft sought should be made. There will accordingly be, in the case of the Poruma people's claim, a declaration that native title exists in respect of Poruma Island, and there will be a further declaration that the persons holding communal and group rights comprising that native title are the Poruma people. In the case of the Warraber claim, there will be a declaration that native title exists in relation to Warraber Island and the associated islands, and there will be a declaration that the persons holding communal and group rights comprising that native title are the Warraber people. 8 As has been mentioned by various of the representatives of the parties, the Court does not sit today to impose any decision on anyone. The determinations are by consent, so that just as the other parties to the claims, the respondent parties, recognise the traditional claims of both the Poruma and Warraber peoples to their ancestral lands, so do the Poruma and Warraber people recognise the rights and interests of the various other parties to the proceedings. 9 There will be, in relation to the Poruma claim, declarations and orders in the terms proposed in Exhibit 1. Since it is intended that the native title be held in trust for the Poruma people, there will be an order and declaration that that native title is to be held in trust by the Porumalgal (Torres Strait Islanders) Corporation. In relation to the Warraber claim, there will be declarations and orders in terms of Exhibit 2; and since that native title is to be held in trust for the Warraber people, there will be a declaration and order that native title is to be held in trust by the Warraberalgal (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: 8 August 2000 QG 6087 OF 1998 Solicitor for the Applicant: Mr P Hayes Counsel for the First Respondent: The Honourable Attorney-General for the State of Queensland Matt Foley Solicitor for the First Respondent: Crown Solicitor Solicitor for the Second Respondent: Mr P Hayes Solicitor for the Third Respondent: Blake Dawson Waldron Solicitor for the Fourth Respondent: McDonnells Solicitor for the Fifth Respondents: Gore & Associates Date of Hearing: 7 July 2000 Date of Judgment: 7 July 2000 QG 6073 OF 1998 Solicitor for the Applicant: Mr P Hayes Counsel for the First Respondent: The Honourable Attorney-General for the State of Queensland Matt Foley Solicitor for the First Respondent: Crown Solicitor Solicitor for the Second Respondent: Mr P Hayes Solicitor for the Third Respondent: Department of Premier & Cabinet Solicitor for the Fourth Respondent: Blake Dawson Waldron Solicitor for the Fifth Respondent: McDonnells Solicitor for the Sixth Respondents: Gore & Associates Date of Hearing: 7 July 2000 Date of Judgment: 7 July 2000 Link: Annexrures A & B (pdf, 1.3 mb)