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Nona on behalf of the Badulgal v State of Queensland  FCA 1578
|Binomial Name:||Federal Court of Australia|
|Date:||14 December 2004|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Badu Island, Torres Strait, Queensland, Australia|
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|Badu Island and surrounding islands in the Torres Strait. The determination area comprises 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 A on Deposited Plan 146130 in Lot 7 on Plan TS158; (ii) Lease F on Deposited Plan 150247 in Lot 4 on Plan TS158; (b) Lots 8-10, 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.|
|Legal Status:||Registered on the National Native Title Register|
|Legal Reference:||Federal Court file no.: QUD6078/98; Tribunal file|
|Subject Matter:||Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests | Native Title|
|Nona on behalf of the Badulgal v State of Queensland  FCA 1578|
Between: Victor Nona on behalf of the Badulgal (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: Badu 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 Badulgal People and the 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 7 on Plan TS158 being part of the island referred to as Badu Island excluding the areas described as:
(i) Lease A on Deposited Plan 146130 in Lot 7 on Plan TS158;
(ii) Lease F on Deposited Plan 150247 in Lot 4 on Plan TS158;
(b) Lots 8-10, 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.
Native title is held by the Badulgal People and Torres Strait Islanders as described in Schedule 3.
The native title rights and interests identified in Order 1, held by the Badulgal People over the determination area, confer rights to possess, occupy, use and enjoy the land and waters of the Determination Area to the exclusion of all others, subject to Orders 4 and 5.
The native title 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 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 Badulgal People.
Other (non-native title) interests recognised in the area are set out in Order 6 (Schedule 4). These include the interests of the Badu Island Council and the beneficiaries under deed of grant No. 21296126; the interests of Crossfield Ahmant Jnr under registered lease No. 701357026; the interests of the Commonwealth of Australia under registered lease No. TL 0/221140 title reference 40044103; the interests of Wakaid Coral Sea Pty Ltd under a lease between it and the Badu Island Council dated 4 September 2000; the interests of the State of Queensland in Reserve 211 over Lot 43 on Plan TS266 and Reserve 218 over Lot 45 on Plan TS268, and the interests of the persons in whom the reserves are vested and of the persons entitled to access and use the reserves for the respective purposes for which they are reserved; the interests of the State of Queensland under an indigenous land use agreement dated 22 November 2004 between it and Victor Nona; the rights and interests of Ergon Energy Corporation Limited as the owner and operator of electricity generation and distribution facilities within the Determination Area, its statutory rights, and its rights under an indigenous land use agreement with the Native Title Holders dated 25 November 2004; the rights and interests of Telstra Corporation Limited as the owner and operator of telecommunications facilities within the Determination Area, its statutory rights, and its rights under an indigenous land use agreement with the Native Title Holders dated 29 November 2004; 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; 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 TS 158 and Lease B on Deposited Plan 144909 in Lot 7 on Plan TS 158; any interests under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985(Qld); the powers of the Badu 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; 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(f)). The ILUA was registered (Tribunal no. QI2004/039)) on the Register of Indigenous Land Use Agreements on 24 May 2005.
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.
This consent determination was registered on the Native Title Register of Consent Determinations on 24 May 2004.
|The determination arose out of an application for determination of native title filed on 23 June 1996. 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.|
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.
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.
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