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Nona and Ors on behalf of the Saibai, Dauan, Mabuiag, Badu and Boigu Peoples v State of Queensland  FCA 1118 (15 August 2005)
|Binomial Name:||Federal Court of Australia|
|Date:||15 August 2005|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Torres Strait, Queensland, Australia|
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|Islands of Buru (or Turnagain Island), Warul Kawa (or Deliverance Island), Kerr Islet and Turu Cay in the vicinity of Badu, Boigu and Saibai Islands in the Torres Strait.|
|Legal Status:||Registered on the Native Title Register|
|Legal Reference:||Federal Court file no: QUD6021/01; Tribunal file n|
|Nona and Ors on behalf of the Saibai, Dauan, Mabuiag, Badu and Boigu Peoples v State of Queensland  FCA 1118 (15 August 2005)|
Between: Victor Nona, John Whop, Pili Waigana, Nelson Gibuma and Phillip Bigie on behalf of the Mabuiag, Badu and Boigu Peoples (APPLICANTS) AND
The State of Queensland and Ors (RESPONDENTS)
Judge: Black CJ
Determination: Native title exists in the entire determination area. The determination recognises that the persons holding the communal and group rights are the people described in Schedule 2 of the determination, being the Saibai, Dauan, Mabuiag, Badu and Boigu Peoples. These are:
'(a) the descendants of one or more of the following apical ancestors:
Au, Sapal, Ausi Waria, Maigi, Apaga, Panetha, Ganume, Aki, Nadai, Gumaroo, Anu, Tom Ober, Gebadi, Sigai, Migui, Piapi, Sam, Zaber, Dawaoo, Asse, Whap, Goa, Madua, Jawai and Garmai, Siwia and Seik, Saba, Naiama and Boingan, Peid, Maku, Bari and Pitu, Getawan, Sagul, Uria, Baira, Inor, Zimoia, Newar, Sagigi, Jawa, Wairu, Paipe, Waria, Kamui, Mabua, Laza, Gainab, Zaua, Walit, Namagoin, Alageda, Mariget, Bazi, Ugarie, Karud, Duawadi, Gizu, Aupau, Zarzar, Mau, Umai, Gabai, Tabu, Nadai, Agirri, Abai, Daleku, Ganagi, Gibuma and Namai; 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.' (See Schedule 2).
The area covered by the determination is illustrated in Schedule 1 to the determination. Native title exists in relation to the land and waters on the landward side of the High Water Mark of Lot 7 on Crown Plan TS 222 known as Buru (also referred to as Turnagain Island) and Lot 6 on Crown Plan TS 221 known as Kerr Islet and Lot 2 on USL 36848 referred to as Turu Cay. (See Order 1).
The native title rights and interests identified in Order 1, held by the Saibai, Dauan, Mabuiag, Badu and Boigu Peoples are rights to possession, occupation, use and enjoyment of the determination area to the exclusion of all others. The native title right 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.' (See Order 4).
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.
The native title rights identified are subject to and exercisable in accordance with Commonwealth and State laws and the common law, and with the traditional laws and customs observed by the Native Title Holders.
Other (non-native title) interests recognised in the area are set out in Schedule 3 (see Order 6). These include the interests of the State of Queensland in several reserves, the interests of those in whom the reserves are vested, and the interests of those entitled to access and use of the reserves. The reserves are:
(i) Reserve 225 over Lot 7 on Crown Plan TS 222;
(ii) Reserve 224 over Lot 6 on Crown Plan TS 221; and
(iii) Reserve 226 over Lot 38 on Crown Plan TS 221.
Other non native title interests include the powers and functions of the Torres Shire Council as Local Government, 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, and any other interests that may be held by reason of the force or operation of Commonwealth or State laws, including the common law.
The relationship between the native title interests and other interests 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 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.' (See Order 7).
|The determination arose from an application for determination of native title made in 2002 in respect of the islands of Buru (or Turnagain Island), Waral Kawa (or Deliverance Island), and two smaller islands called Kerr Islet and Turu Cay. The application was made on behalf of the Boigu, Dauan, Badu, Mabuiag and Saibai People. The main respondent to the application was the State of Queensland although there are 11 respondents in total. These are:|
Jeffrey James Amos, Tony Boase, Lenore Boase and Family, Danny George Brownlow, Gregory Neil Jones, Robert John Miller, Peter J Pahlke, Geoffrey D Rutherford, Michael and Anne Tooker, Rodney F Webber and Barry Wilson.
The Court noted the 'continuous physical, cultural and spiritual connection' of the Saibai, Dauan, Mabuiag, Badu and Boigu People with the land. It noted that the influx of Europeans and the annexation of the Torres Strait Islands had not dispossessed the Islanders of their home islands or territories. Rather, their participation in fishing industries had provided opportunities for frequent visits to the claim islands and the maintenance of a connection with them. (See paras 12 and 13). For these reasons and others, the Court found it appropriate to grant the orders as agreed by the parties to the application. The Court noted in conclusion, that the order does not grant native title to the Saibai, Dauan, Mabuiag, Badu and Boigu Peoples, but rather 'recognises what they have long held.' (See para 16.)
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