Newie on behalf of the Gebaralgal v State of Queensland [2004] FCA 1577

FEDERAL COURT OF AUSTRALIA

Newie on behalf of the Gebaralgal v State of Queensland [2004] FCA 1577 NATIVE TITLE – determination of – by consent – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate MICHEALANGELO NEWIE, SAM KRIS, JOHN LEVI, JOHN LOVEMAN, DICK PETERS AND STEVEN PETERS ON BEHALF OF THE GEBARALGAL v STATE OF QUEENSLAND QG6066 of 1998 COOPER J YAM ISLAND, TORRES STRAIT 13 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG6066 OF 1998

BETWEEN: MICHEALANGELO NEWIE, SAM KRIS, JOHN LEVI, JOHN LOVEMAN, DICK PETERS AND STEVEN PETERS ON BEHALF OF THE GEBARALGAL

APPLICANTS

AND: STATE OF QUEENSLAND

RESPONDENT

JUDGE: COOPER J

DATE: 13 DECEMBER 2004

PLACE: YAM ISLAND, TORRES STRAIT

REASONS FOR JUDGMENT Background 1 This proceeding arises out of an application for determination of native title filed on 18 June 1996 in accordance with the procedures set out in the Native Title Act 1993 (Cth) ('the Act'). Michealangelo Newie, Sam Kris, John Levi, John Loveman, Dick Peters and Steven Peters were the original named applicants in this claim made on behalf of the people of Gebara Island in the Torres Strait and all of these original named applicants have continued to act as such in this proceeding up until today, which sees the final resolution of this matter. The only respondent to this determination application is the State of Queensland. 2 The determination application shows the claim area as the land and waters on the landward side of the high water mark of Lot 43 on Plan TS216 in the Parish Umaga, County of Torres in the State of Queensland, referred to as Gebara Island, Gabba Island or Two Brothers Island. 3 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 4 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. 5 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. 6 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.