FEDERAL COURT OF AUSTRALIA Nona on behalf of the Badulgal v State of Queensland [2004] FCA 1578 NATIVE TITLE – determination of – by consent – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate VICTOR NONA ON BEHALF OF THE BADULGAL v STATE OF QUEENSLAND AND OTHERS QG6078 of 1998 COOPER J BADU ISLAND, TORRES STRAIT 14 DECEMBER 2004 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG6078 OF 1998 BETWEEN: VICTOR NONA ON BEHALF OF THE BADULGAL APPLICANT AND: STATE OF QUEENSLAND FIRST RESPONDENT TORRES STRAIGHT REGIONAL AUTHORITY SECOND RESPONDENT ERGON ENERGY THIRD RESPONDENT TELSTRA CORPORATION FOURTH RESPONDENT QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION FIFTH RESPONDENT JUDGE: COOPER J DATE: 14 DECEMBER 2004 PLACE: BADU ISLAND, TORRES STRAIT REASONS FOR JUDGMENT Background 1 This proceeding arises out of an application for determination of native title filed on 23 June 1996 in accordance with the procedures set out in the Native Title Act 1993 (Cth) ('the Act'). Mr Dan Sagigi (Snr), a traditional Badulaig elder, was the original named applicant in this claim made on behalf of the people of Badu Island in the Torres Strait. Following the death of Mr Sagigi in July 2002, Mr Victor Nona proceeded as the named applicant on behalf of the Badulgul. 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 7 on Plan TS158 being part of the island referred to as Badu Island excluding the areas described as: (i) Lease T on Deposited Plan 145576 in Lot 7 on Plan TS158; (ii) Lease A on Deposited Plan 146130 in Lot 7 on Plan TS158; (b) Lots 8-11, 18-33, 36 and 37 on Plan TS265; (c) Lots 12-20, 35-41 and 43 on Plan TS266; (d) Lots 44-52 on Plan TS268; and (e) Lots 81, 90-93 and 108-112 on Plan TS276.' 3 The determination application also lists certain areas as not covered by the claim. Those areas are: (a) Lot 135 on Plan TS288; (b) Lot 9 on Crown Plan 894533; (c) Lot 11 on Plan TS163; (d) Lot 12 on Plan TS158; (e) Lease T on Deposited Plan 145576 in Lot 7 on Plan TS158; (f) Lease A on Deposited Plan 146130 in Lot 7 on Plan TS158; and (g) 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 islands previously included in the claim. Those islands are: Ngurtai Islet, Logan Rocks, Matu Island, Gainaulai Islet, Tuft Rock, Dadalai Islet, Warral Island, Ului Island, Wia, Tuin, Ngul, Tukupai, Maitak, Kanig, Zurat, Kulbai Kulbai, Ilapnab and Meth Islet and surrounding islands. 5 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 6 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. 7 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. 8 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 9 In considering whether it is appropriate to make the orders that the parties seek, I have had the benefit of an affidavit of the late Mr Sagigi filed on 26 May 1999. I have also had the benefit of an anthropological report prepared on behalf of the applicant in September 2000 by Mr Kevin Murphy, consultant anthropologist, and filed on 19 November 2004. Mr Murphy's account reveals that, before the impact of colonialism, the available evidence indicates that the Badulgal society was organised into 'totemic clans' with the basic building blocks of social organisation being patri-clans with membership normally inherited from the father. While tracing the date of the first indigenous inhabitation of Badu Island has not been an easy task for anthropologists, it is well known by the Badulgal themselves in their oral history, as well as in the written historical record, that their ancestors were at Badu long before the assertion of sovereignty by the British Crown in 1872. 10 The Badulgal were, and continue to be, a maritime people living off the land and waters and engaging in trade with neighbouring island communities. 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. Murphy records that after Torres' passage through the Strait, 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. 11 As the documentary evidence shows, the Badulgal still maintain a system of traditional land ownership which is continuous with the system as it operated before sovereignty. Relationships within the Badu Island community are expressed in the idiom of kinship and identification with a particular family provides the main avenue by which any individual claims ownership of land. The continuing connection between the Badulgal and the determination area is well recognised. The late Mr Sagigi deposed in support of the Badulgal's native title rights over the determination area: '(a) Badu 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 am one of the traditional owners of particular land including land known as Mui Wakaid. (b) Badu 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, upon my death my interests in land will pass to my children and other members of my extended family. (c) Badu 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, many Badu Islanders maintain house gardens, and also frequently collect wild plant foods such as wongai plums. (d) Badu 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. For example, mats, drums, harpoons and other items are regularly traded with visiting Papuans. (e) Badu 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. One such festival was the recent ordination of a priest at Badu which involved feasting and traditional dancing.' 12 I accept the evidence contained in Mr Sagigi'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 Badulgal 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 Badulgal; 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. 13 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 Determinations 14 The proposed Orders, which are consistent with the terms agreed by the parties, recognise that the Badulgal, 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. 15 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 fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate: Dated: 14 December 2004 Solicitor for the Applicant: Torres Strait Regional Authority Solicitor for the State of Queensland: Crown Solicitor APPENDIX IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. QG 6078 of 1998 VICTOR NONA ON BEHALF OF THE BADULGAL PEOPLE Applicant STATE OF QUEENSLAND First Respondent TORRES STRAIT REGIONAL AUTHORITY Second Respondent ERGON ENERGY CORPORATION LIMITED Third Respondent TELSTRA CORPORATION LIMITED Fourth Respondent QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION INC Fifth Respondent ORDER JUDGE: DATE OF ORDER: WHERE MADE: THE COURT ORDERS BY CONSENT THAT: 1. Native title exists in relation to the land and waters described in Schedule 1 and shown on the plan in Schedule 2 ("the Determination Area"). 2. Native title is held by the people described in Schedule 3 ("the Native Title Holders"). 3. Subject to paragraphs 4 and 5, the native title is a right to possession, occupation, use and enjoyment to the exclusion of all others. 4. Subject to paragraph 5, the native title in relation to Water is a non-exclusive right to: (a) hunt and fish in or on, and gather from, the Water for the purpose of satisfying personal, domestic or non-commercial communal needs; and (b) take, use and enjoy the Water for the purpose of satisfying personal, domestic or non-commercial communal needs. The native title in relation to Water does not confer possession, occupation, use and enjoyment of the Water on the Native Title Holders to the exclusion of all others. 5. The native title is subject to and exercisable in accordance with: (a) the laws of the Commonwealth of Australia and the State of Queensland including the common law; and (b) traditional laws acknowledged and traditional customs observed by the Native Title Holders. 6. The nature and extent of the other interests in relation to the Determination Area are set out in Schedule 4. 7. The relationship between the native title and the other interests referred to in paragraph 6 is that: (a) the other interests continue to have effect and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title; and (b) the other interests and any activity done in exercise of the rights conferred by or held under the other interests prevail over the native title and any exercise of the native title. 8. If a word or expression is not defined in this order, but is defined in the Native Title Act 1993 (Cth) then it has the meaning given to it in the Native Title Act 1993 (Cth). In addition to the other words defined in this order: (a) "High Water Mark" has the meaning given to it in the Land Act 1994 (Qld); (b) "Local Government" has the meaning given to it in the Local Government Act 1993 (Qld); (c) "Roads" means the roads shown on the plan in Schedule 2 and all other roads whether declared, notified, constructed, surveyed, or taken under the laws of the Commonwealth of Australia or the State of Queensland including the common law, to be a road; and (d) "Water" has the meaning given to it in the Water Act 2000 (Qld). 9. Paragraphs 1-7 will take effect on the agreement referred to in item (f) of Schedule 4, being registered on the Register of Indigenous Land Use Agreements. 10. In the event that the agreement referred to in paragraph 9 is not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions. 11. Upon paragraphs 1-7 taking effect, the native title is to be held in trust by the Mura Badulgal (Torres Strait Islanders) Corporation for the benefit of the Native Title Holders. 12. Each party to the proceeding is to bear its own costs. Date that entry is stamped: . . . . . . . . . . . . . . . . . . . . . . . . . . . Deputy District Registrar SCHEDULE 1 DETERMINATION AREA The land and waters on the landward side of the High Water Mark of: (a) Lot 7 on Plan TS158 being part of the island referred to as Badu Island excluding the areas described as: (i) Lease T on Deposited Plan 145576 in Lot 7 on Plan TS158; and (ii) Lease A on Deposited Plan 146130 in Lot 7 on Plan TS158; (b) Lots 8-11, 18-33, 36 and 37 on Plan TS265; (c) Lots 12-20, 35-41 and 43 on Plan TS266; (d) Lots 44-52 on Plan TS268; and (e) Lots 81, 90-93 and 108-112 on Plan TS276. Lot 135 on Plan TS288, Lot 9 on Crown Plan 894533, Lot 11 on Plan TS163, Lot 12 on Plan TS158, Lease T on Deposited Plan 145576 in Lot 7 on Plan TS158, Lease A on Deposited Plan 146130 in Lot 7 on Plan TS158 and all Roads are not subject to native title determination application Badu Islanders #1 QG 6078 of 1998 and do not form part of the land and waters described above. SCHEDULE 2 NATIVE TITLE DETERMINATION PLAN SCHEDULE 3 NATIVE TITLE HOLDERS The Badulgal People, being: (a) the descendants of one or more of the following apical ancestors: Getawan, Sagul, Uria, Baira, Inor, Zimoia, Newar, Sagigi, Jawa, Wairu, Paipe, Waria, Kamui, Mabua, Laza, Gainab, Walit, Namagoin, Mariget, Bazi, Ugarie, Karud, Dauwadi, Gizu, Aupau or Zarzar; and (b) Torres Strait Islanders who have been adopted by the above people in accordance with the traditional laws acknowledged and traditional customs observed by those people. SCHEDULE 4 OTHER INTERESTS The nature and extent of the other interests in relation to the Determination Area are: (a) the interests of the Badu Island Council and the beneficiaries under deed of grant No. 21296126; (b) the interest of Crossfield Ahmat Jnr. under registered lease No. 701357026; (c) the interests of the Commonwealth of Australia under registered lease No. TL 0/221140 title reference 40044103; (d) the interests of Wakaid Coral Sea Pty Limited under a lease between it and the Badu Island Council dated 4 September 2000; (e) the interests of the State of Queensland and the persons in whom the following reserves are vested and the interests of the persons entitled to access and use those reserves for the respective purposes for which they are reserved: (i) Reserve 211 over Lot 43 on Plan TS266; and (ii) Reserve 218 over Lot 45 on Plan TS268; (f) the interests of the State of Queensland under an indigenous land use agreement dated 22 November 2004 between it and Victor Nona; (g) the interests of the Commonwealth of Australia under the Pumpkin Island (Koey Ngurtai) Indigenous Land Use Agreement (National Native Title Tribunal No. Q12004/002) dated 25 February 2004 and registered on 27 July 2004; (h) the interests of Ergon Energy Corporation Limited, being: (i) rights and interests as the owner and operator of electricity generation, transmission and distribution facilities within the Determination Area; (ii) rights and interests in exercising its statutory powers and responsibilities; (iii) rights to enter the Determination Area by employees, agents or contractors of Ergon Energy Corporation Limited to enable access to its facilities in, and in the vicinity of, the Determination Area or otherwise as required in the exercise of their powers or the performance of their responsibilities; and (iv) the rights and interests under an indigenous land use agreement between the Native Title Holders and Ergon Energy Corporation Limited dated 25 November 2004; (i) the rights and interests of Telstra Corporation Limited, being: (i) rights and interests as the owner or operator of telecommunications facilities installed within the Determination Area and as the holder of a carrier licence under the Telecommunications Act 1997 (Cth); (ii) rights and interests created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); (iii) rights to enter the Determination Area by employees, agents or contractors of Telstra Corporation Limited in the performance of their duties, to enable access to its telecommunications facilities in, and in the vicinity of, the Determination Area; and (iv) rights and interests under an indigenous land use agreement between the Native Title Holders and Telstra Corporation Limited dated 29 November 2004; (j) the interests of the State of Queensland in the accommodation facilities located within the areas described as Lease A and Lease B on Deposited Plan 152625 in Lot 7 on Plan TS158 including the: (i) rights to use, operate and maintain the facilities; (ii) rights to control access to and use of the facilities; and (iii) rights of its employees, contractors, agents, representatives, licensees, permittees and invitees to enter the Determination Area for the purposes of accessing the facilities; (k) the interests of the State of Queensland in the community health centre and accommodation facilities located within the areas described as Lease A on Deposited Plan 151787 in Lot 7 on Plan TS158 and Lease B on Deposited Plan 144909 in Lot 7 on Plan TS158 including the: (i) rights to use, operate and maintain the centre and facilities; (ii) rights to control access to and use of the centre and facilities; and (iii) rights of its employees, contractors, agents, representatives, licensees, permittees and invitees to enter the Determination Area for the purposes of accessing the centre and facilities; (l) any interests under an application under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) set out below: (i) Application No. 1/89; (ii) Application No. 2/89; (iii) Application No. 3/89; (iv) Application No. 4/89; (v) Application No. 5/89; (vi) Application No. 6/89; (vii) Application No. 7/89; (viii) Application No. 8/89; (ix) Application No. 9/89; (x) Application No. 10/89; (xi) Application No. 11/89; (xii) Application No. 12/89; (xiii) Application No. 13/89; (xiv) Application No. 14/89; (xv) Application No. 15/89; (xvi) Application No. 16/89; (xvii) Application No. 17/89; (xviii) Application No. 18/89; (xix) Application No. 19/89; (xx) Application No. 20/89; (xxi) Application No. 21/89; (xxii) Application No. 22/89; (xxiii) Application No. 23/89; (xxiv) Application No. 24/89; (xxv) Application No. 26/89; (xxvi) Application No. 27/89; (xxvii) Application No. 28/89; (xxviii) Application No. 29/89; (xxix) Application No. 30/89; (xxx) Application No. 31/89; (xxxi) Application No. 32/89; (xxxii) Application No. 33/89; (xxxiii) Application No. 34/89; (xxxiv) Application No. 35/89; (xxxv) Application No. 36/89; (xxxvi) Application No. 37/89; (xxxvii) Application No. 38/89; (xxxviii) Application No. 39/89; and (xxxix) Application No. 42/89; (m) the powers of the Badu Island Council under the Community Services (Torres Strait) Act 1984 (Qld) to discharge the functions of Local Government over the area under deed of grant No. 21296126 and exercise the powers of good rule and government thereof in accordance with the customs and practices of the inhabitants of that area; (n) the interests, powers and functions of the Torres Shire Council as Local Government for: (i) Lots 8-11, 18-33, 36 and 37 on Plan TS265; (ii) Lots 12-20, 35-41 and 43 on Plan TS266; (iii) Lots 44-52 on Plan TS268; and (iv) Lots 81, 90-93 and 108-112 on Plan TS276; (o) 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 order including the interests of indigenous Papua New Guinea persons in having access to the Determination Area for traditional purposes; and (p) any other interests that may be held by reason of the force or operation of the laws of the Commonwealth of Australia or the State of Queensland including the common law.