Gibuma on behalf of the Boigu People v State of Queensland [2004] FCA 1575

FEDERAL COURT OF AUSTRALIA

Gibuma on behalf of the Boigu People v State of Queensland [2004] FCA 1575 NATIVE TITLE – determination of – by consent – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate DENNIS GIBUMA ON BEHALF OF THE BOIGU PEOPLE v STATE OF QUEENSLAND AND OTHERS QG6199/98 COOPER J BOIGU ISLAND, TORRES STRAIT 10 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG6199 OF 1998

BETWEEN: DENNIS GIBUMA ON BEHALF OF THE BOIGU PEOPLE

APPLICANT

AND: STATE OF QUEENSLAND

FIRST RESPONDENT

TORRES STRAIGHT REGIONAL AUTHORITY

SECOND RESPONDENT

ERGON ENERGY CORPORATION LIMITED

THIRD RESPONDENT

TELSTRA CORPORATION LIMITED

FOURTH RESPONDENT

QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION IC

FIFTH RESPONDENT

JUDGE: COOPER J

DATE: 10 DECEMBER 2004

PLACE: BOIGU ISLAND, TORRES STRAIT

REASONS FOR JUDGMENT Background 1 This proceeding arises out of an application for determination of native title filed on 5 June 1998 in accordance with the procedures set out in the Native Title Act 1993 (Cth) ('the Act'). Mr Sipau Gibuma, a traditional Boigu elder, was the original named applicant in this claim made on behalf of the people of Boigu Island in the Torres Strait. Following the death of Mr Sipau Gibuma, his son, Mr Dennis Gibuma proceeded as the named applicant on behalf of the Boigu People. The main respondent to this determination application is the State of Queensland. 2 The determination application shows the claim area as comprising the land and waters on the landward side of the high water mark of: '(a) Lot 4 on Plan TS159 being part of the island referred to as Boigu Island excluding the areas described as: (i) Lease T on Deposited Plan 175710 in Lot 4 on Plan TS159; (ii) Lease A on Deposited Plan 146131 in Lot 4 on Plan TS159; (b) Lot 39 on Plan TS213 referred to as Aubussi Island; (c) Lot 40 on Plan TS213 referred to as Moimi Island; (d) Lots 1-10 on Plan AP8348; and (e) Lots 11 and 12 on Plan AP8349.' 3 The determination application also lists certain areas as not covered by the claim. Those areas are: 'Lot 6 on Crown Plan 894534, Lot 5 on Plan TS159, Lease T on Deposited Plan 175710 in Lot 4 on Plan TS159, Lease A on Deposited Plan 146131 in Lot 4 on Plan TS159 and all Roads'. 4 The original application was amended, and was further amended by a native title determination application filed on 18 November 2004 to reduce the area of the claim by excluding certain areas previously included. The parties to the claim have mediated the issues which arose under the application to the point where they have agreed to a consent determination. The agreement concerns exclusive and non-exclusive rights of possession, occupation, use and enjoyment of the lands and waters in the claim area. This agreement is subject to the Court being satisfied that it has the power to make the determination sought and that it is proper to do so. Power of the Court 5 This Court has jurisdiction to hear and determine applications for a determination of native title in relation to an area for which there is no approved determination of native title: ss 13, 61 and 81 of the Act. Division 1C of Part 4 of the Act provides for agreements, to be made by some or all of the parties to an application, to settle the application or part of it. 6 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. 7 Section 94A of the Actrequires that an order of this Court which makes a determination of native title must set out details of the matters mentioned in s 225 of the Act. Section 225 provides: 'A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.' (original emphasis) Consideration of Agreement and Draft Determination 8 In considering whether it is appropriate to make the orders that the parties seek, I have had the benefit of two affidavits of the late Mr Sipau Gibuma filed on 4 November 1999 and 27 May 2002. I have also had the benefit of an anthropological report prepared on behalf of the applicants in November 2001 by Mr Kevin Murphy, consultant anthropologist, and filed on 19 November 2004. Mr Murphy's account reveals that the ancestors of the Boigu People were at Boigu Island long before the assertion of sovereignty by the British Crown in 1879. The clans at Boigu are defined by reference to the totems of the cassowary, crocodile, snake, vine leaf, shark and heron. The available evidence indicates these totemic clans were the basic building blocks of social organisation in the pre-colonial era and they continue to exist today. 9 The first European contact with the people of the Torres Strait came in 1606 when Captain Luis Baez de Torres sailed through the strait that now bears his name. According to Murphy's report, the first written record of European awareness of Boigu Island was made in 1793. The voyage of the Chesterfield under the command of M W Bampton and the Hormuzeer under the command of M B Alt through the Torres Strait en route from Sydney to Bengal resulted in the Hormuzeer running aground on an island bank from which Boigu was sighted and named 'Talbot Island'. From the available evidence, it appears that there was very little in the way of European traffic until the establishment of a British colony at Port Jackson in the colony of New South Wales, and the charting of a safe passage through the dangerous waterway by Captain Bligh in 1792, made the Torres Strait a regular route for ships travelling between Asia and the Pacific, and the new colonies in Australia. After Bampton and Alt's sighting of Boigu in 1793, it was many years before the Europeans returned to Boigu, and many more years before there was sustained contact between the Boigu People and the Europeans. The British Crown eventually declared sovereignty in 1879 over all of the islands of the Torres Strait, incorporating the region into the colony of Queensland. 10 As the documentary evidence shows, the Boigu People still maintain a system of traditional land ownership which is continuous with the system as it operated before sovereignty. Mr Murphy records that rights in Boigu land may be deliberately bestowed on descendants, or in the absence of such bestowal they may simply pass as of right to succeeding generations. The continuing connection between the Boigu People and the determination area is well recognised. The late Mr Sipau Gibuma had deposed in support of the Boigu People's native title rights over the determination area: '5. The traditional land owners have an acknowledged system of traditional laws and customs which they have observed and continue to observe relating to, among other things, land ownership. These laws and customs determine who are the rightful owners of particular parcels of land, how such ownership may rightfully pass from one person to another and collectively recognise the continuing traditional associations with the claim area of the Boigu Island people. 6. In support of some of the rights included as part of the continuing traditional inheritance of Boigu Island people and therefore as part of their native title rights, I confirm that: (a) Boigu Island people have always enjoyed, and continue to enjoy, their rights to use, occupy and live on their land and to exclude others from it and to use and enjoy the natural resources of the land such as animal and plant life. For example, I live on land inherited from my adoptive father. I have coconuts at another place owned by my family. I regularly go hunting for ducks and for deer on the land. (b) Boigu Island people leave their land to the children and others in accordance with their tradition and custom and grant and withhold permission for others to use their land. For example, my adopted children will inherit my interest in the land which my family inherited from my father. (c) Boigu Island people hunt over the land, forage the land, garden the land and generally use the resources of the land albeit in somewhat changing ways over the years. For example, some Boigu people maintain their gardens for their own use and many Boigu people hunt for game and forage for wild vegetable products on the land. (d) Boigu Island people trade and share in their natural resources amongst themselves and trade with others including Papuans, other Torres Strait Islanders and non-indigenous persons. I regularly trade with Papuan people. (e) Boigu Island people conduct social, religious and economic life upon the claim area including the visiting of cultural sites of significance, conducting burials and tomb stone openings, participating in festivals and associated traditional dancing and being responsible on a daily basis for the care of the land. I sometimes visit sacred sites on Boigu; I attend church services, tombstone openings and other occasions of traditional dancing and feasting.' 11 I accept the evidence contained in the late Mr Gibuma's affidavit and the opinions contained in Mr Murphy's report. I am satisfied that: (a) native title exists in relation to the lands and waters identified in the draft determination agreed to by the parties; (b) the members of the claimant group referred to as the Boigu People are members of a society of peoples descended from the Torres Strait Islander peoples who as a society at the time of sovereignty occupied the lands and waters identified in the draft determination in accordance with traditional laws and customs acknowledged and observed by them; (c) the laws and customs acknowledged and observed by the society at sovereignty are continued to be acknowledged and observed by the members of the claim group and have been acknowledged and observed by their predecessors from the time of sovereignty to the present time; (d) the members of the claim group and their predecessors through their continued acknowledgement and observance of the traditional laws and customs which existed at the time of sovereignty, have maintained since that time a connection to the determination area; (e) the native title rights and interests in the determination area are held by the persons who are or are entitled to be or become members of the claim group called the Boigu People; and (f) the nature and extent of the exclusive and non-exclusive native title rights and interests in relation to the determination area are as set out in the agreed draft determination. 12 I am also satisfied on the materials that there are other interests in and in relation to the determination area. Those interests and their relationship with the native title interests are set out in Schedule 4 of the agreed draft determination. Orders and Determination 13 The proposed Orders, which are consistent with the terms agreed by the parties, recognise that the Boigu People, as the common law holders of the native title, are entitled to possess, occupy, use and enjoy the land and waters of the determination area, in accordance with their traditional laws and customs. The proposed Orders also recognise the other interests in the lands and waters in the determination area and the relationship of those interests with the native title interests. The proposed Orders contain the elements required by s 94A and s 225 of the Act. 14 I am satisfied that it is within the power of the Court to make the Orders sought and that these Orders can appropriately be made to give effect to the parties' agreement without a full hearing of the determination application. I therefore make the Orders and determination attached as the Appendix to these reasons. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.