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Jack Billy on behalf of the Poruma People v State of Queensland and Ors [2005] FCA 1115 (15 August 2005)

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 15 August 2005
Sub Category:Consent Determination (Native Title Act)
Location:Torres Strait, Queensland, Australia
The determination area comprises the land and waters on the landward side of the High Water Mark Lot 48 on Crown Plan TS 243 known as Uttu (also referred to as Dove Island) and Lot 41 on Crown Plan TS 217 known as Yarpar (also referred to as Roberts Island.
Legal Status: Registered on the National Native Title Register
Legal Reference: Federal Court file no: QUD6043/01; Tribunal file n
Alternative Names:
  • Yarpur and Uttu Consent Determination
  • Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests
    Summary Information:
    Jack Billy on behalf of the Poruma People v State of Queensland and Ors [2005] FCA 1118 (15 August 2005)

    Between: Jack Billy on behalf of the Poruma People (APPLICANT) AND
    The State of Queensland and Ors (RESPONDENTS)

    Judge: Black CJ

    Where: Melbourne

    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 Poruma People. These are:

    '(a) the descendants of one or more of the following apical ancestors:

    Laieh, Gauid, Kalai, Mapoo and Wawa; 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 48 on Crown Plan TS 243 known as Uttu (also referred to as Dove Island) and Lot 41 on Crown Plan TS 217 known as Yarpar (also referred to as Roberts Island). (See Order 1).

    The native title rights and interests identified in Order 1, held by the Poruma People 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 Gau Land Trust and beneficiaries under deed of grant No. 40016531, the interests, 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).
    Detailed Information:
    The determination arose from an application for determination of native title made in respect of Uttu (also known as Dove Island) and Yarpar (also known as Roberts Island), in the Torres Strait. The application was made in 2001 on behalf of the Poruma People. The main respondent to the application is the State of Queensland however there are 20 respondents in total being:

    Danny George Brownlow, Guy Stewart and Beverley Joan Bruce, Carl Daguiar, Barry Ehrke, Robert George Giddins, Larry and Pamela Hudson, Richard Laurence Jones, Bob Lamacchia, Noel And Ken Lollback, Robert Bruce Lowden, Steven Macdonald, Mark Millward, Alison Newbold, Peter J Pahlke, Bruce Rose, Karen Skudder, Robert Stefan John Standen, Mark Willis and Barry Wilson.

    This determination follows a previous determination of native title obtained by the Poruma People in 2000 in respect of Poruma or Coconut Island (see Poruma People v State of Queensland [2000] FCA 1066 (7 July 2000) AND Warraber People v State of Queensland).

    The Court noted that the Poruma People 'continue to be physically, culturally and spiritually connected to their overall estate, in which Yarpur and Uttu remain significant.' It also noted the existence and observation of a 'a body of traditional laws and customs' in place well before the assertion of sovereignty by the Crown. (See paras 13 and 14). 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 Poruma People, but rather 'recognises what they have long held.' (See para 17.)

    Related Entries

    Agreement
  • 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
  • Poruma People v State of Queensland [2000] FCA 1066 (7 July 2000) AND Warraber People v State of Queensland
  • Organisation
  • State of Queensland - Respondent
  • Federal Court of Australia
  • National Native Title Tribunal
  • Porumalgal (Torres Strait Islanders) Corporation
  • Gau Land Trust
  • Torres Shire Council
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • People
  • Poruma People
  • Jack Billy on behalf of the Poruma People - Native Title Claimant

  • References

    Case Law
    Federal Court of Australia (2005) Jack Billy on behalf of the Poruma People v State of Queensland and Ors [2005]FCA 1115
    Resource
    National Native Title Tribunal (2005) Native Title Determination Summary: Yarpar and Uttu

    Glossary

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

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