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

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 10 December 2004
Sub Category:Consent Determination (Native Title Act)
Location:Torres Strait, Queensland, Australia
Boigu, Moimi, Aubussi and surrounding islands in the Torres Strait. The area covered by the determination comprises the land and waters on the landward side of the High Water Mark of Boigu Island excluding lot 5 on plan TS159 and lot 6 on plan CP894534 and as shown on the map in Schedule 1.
Legal Status: Registered on the National Native Title Register.
Legal Reference: Federal Court file no.: QUD6199/98; Tribunal file
Alternative Names:
  • People of Boigu Island #2 Consent Determination
  • Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests | Native Title
    Summary Information:
    Gibuma on behalf of the Boigu People v State of Queensland [2004] FCA 1575

    Between: Dennis Gibuma on behalf of the Boigu people (APPLICANT) AND
    State of Queensland, Torres Strait Regional Authority, Ergon Energy Corporation Limited, Telstra Corporation Limited, Queensland Seafood Industry Association Inc (RESPONDENTS).

    Judge: Cooper J

    Where: Boigu Island, Torres Strait, Queensland

    Determination: Native title exists in the determination area. The determination recognises that the persons holding the communal and group rights are the Boigu People and Torres Strait Islanders who have been adopted by those people in accordance with the traditional laws acknowledged and traditional customs observed by those people, who are the common law holders of native title.

    The area covered by the determination is described in Schedule 1 and shown on the plan in Schedule 2. Native title exists in relation to 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; and
    (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.

    Native title is held by the Boigu People and Torres Strait Islanders as described in Schedule 3.

    The native title rights and interests identified in Order 1, held by the Boigu People over the determination area, confer exclusive rights to possess, occupy, use and enjoy the land and waters of the Determination Area subject to Orders 4 and 5.

    The native title right in relation to water set out in Order 4 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.'

    The native title rights identified are subject to and exercisable in accordance with Commonwealth and State laws and the common law, and with traditional laws and customs observed by the Boigu People.

    Other (non-native title) interests recognised in the area are set out in Order 6 (see Schedule 4). These include the interests of the Boigu Island Council and the beneficiaries under deed of grant No. 21296127; the interests of the Islanders Board of Industry and Service under registered lease No. 706128780; the interests of the Commonwealth of Australia under registered lease No. 708072646; the interests of the State of Queensland under an indigenous land use agreement dated 22 November 2004 between it and Dennis Gibuma; the interests of Ergon Energy Corporation Limited as the owner and operator of electricity generation, its statutory rights and rights under an indigenous land use agreement between the Native Title Holders and Ergon Energy Corporation Limited dated 25 November 2004; the rights and interests of Telstra Corporation as the owner and operator of telecommunications facilities within the Determination Area (including those under an ILUA dated 29 November 2004); the interests of the State of Queensland in the accommodation facilities located within the areas described as Lease E and Lease F on Deposited Plan 151783 in Lot 4 on Plan TS159; the interests of the State of Queensland in the community health centre located within the area described as Lease H on Deposited Plan 151784 in Lot 4 on Plan TS159; any interests under an application under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld); the powers of the Boigu Island Council under the Community Services (Torres Strait) Act 1984 (Qld) to discharge the functions of local government; the interests, powers and functions of the Torres Shire Council as Local Government for Lots 39 and 40 on Plan TS213, Lots 1-10 on Plan AP8348 and Lots 11 and 12 on Plan AP8349; and the interests recognised under the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the Torres Strait.

    The interests set out in Schedule 4 may be exercised notwithstanding the existence of native title. To the extent of any inconsistency between the native title rights and other interests, the other interests prevail over native title.

    Pursuant to Order 9, the terms of the order are to take effect on the registration of an Indigenous Land Use Agreement (see Schedule 4(d)). The ILUA was registered (Tribunal no. QI2004/040)) on the Register of Indigenous Land Use Agreements on 24 May 2005.

    The native title is to be held in trust by the Malu Ki'ai (Torres Strait Islanders) Corporation for the benefit of the Native Title Holders.

    This consent determination was registered on the Native Title Register of Consent Determinations on 24 May 2005.
    Detailed Information:
    The application for determination of native title was filed on 5 June 1998. 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.

    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 mediated the issues which arose under the application to the point where they 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.

    The native title claimants negotiated agreements with the Queensland State Government, Telstra, Ergon Energy and others parties so that this determination could be reached. Agreements were developed following the Federal Court's decision of 14 October 2003 in Erubam Le v State of Queensland which established that where public works had been constructed on the islands prior to 24 December 1996, all native title to those sites would be extinguished. This decision motivated the parties to negotiate such that exclusive native title rights could be recognised.

    Related Entries

    Agreement
  • Boigu People - Ergon Energy Indigenous Land Use Agreement (ILUA)
  • Boigu People Indigenous Land Use Agreement (ILUA)
  • 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
  • Telstra Boigu Indigenous Land Use Agreement (ILUA)
  • Organisation
  • National Native Title Tribunal
  • Federal Court of Australia
  • State of Queensland - Respondent
  • Telstra Corporation Limited - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Queensland Seafood Industry Association - Respondent
  • Malu Ki'ai (Torres Strait Islanders) Corporation
  • Legislation
  • Native Title Act 1993 (Cth)
  • Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld)
  • Community Services (Aborigines) Act 1984 (Qld)
  • People
  • Boigu People
  • Gibuma on behalf of the Boigu People - Native Title Claimant
  • Case Law
  • Erubam Le (Darnley Islanders) #1 v State of Queensland [2003] 134 FCR 155

  • References

    Case Law
    Federal Court of Australia (2004) Gibuma on behalf of the Boigu People v State of Queensland [2004] FCA 1575 (10 December 2004)
    Media Release
    National Native Title Tribunal (2004) Torres Strait Islanders' Native Title Recognised through Agreements
    Resource
    National Native Title Tribunal (2004) Native Title Determination Summary: People of Boigu Island #2

    Glossary

    Consent Determination (Native Title Act 1993 (Cth)) (Australia)

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