Andrew Passi on behalf of the Meriam People v State of Queensland [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 law holders provided that such persons must be Torres Strait Islanders within the meaning of that term in the Native Title Act 1993 (Cth); (iv) regulating among, and resolving disputes between, the common law holders in relation to the rights of possession, occupation, use and enjoyment of the determination area; (v) conducting social, religious, cultural and economic activities on the determination area; and (d) make decisions about and 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 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 determination; and (b) any other interests that may be held by reason of the force and operation of laws of the Commonwealth and/or the State of Queensland. 5. 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 prevail over the native title rights and interests to the extent of the inconsistency. 6. The native title rights and interests confer possession, occupation, use and enjoyment of the determination area to the exclusion of all others, subject to: (a) the traditional laws and customs of the common law holders; (b) the effect and operation of the valid laws of the Commonwealth and/or the State of Queensland; and, (c) the other interests referred to in Order 4. 7. The native title is to be held in trust by the Mer Gedkem Le (Torres Strait Islanders) Corporation for the benefit of the Meriam people. 8. The words and expressions used in this Order have the same meanings as they have in the Native Title Act 1993 (Cth) with the exception of 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, natural gas and any other natural resources to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and/or the State of Queensland; (b) "natural gas" has the meaning given to it in the Petroleum Act 1923 (Qld); (c) "minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld); (d) "petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld); (e) "laws of the Commonwealth and/or the State of Queensland" includes the common law; (f) "high water mark" has the meaning given to it in the Land Act 1994 (Qld). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.