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Mabuiag People v State of Queensland  FCA 1065 (6 July 2000)
|Binomial Name:||Federal Court of Australia|
|Date:||6 July 2000|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Mabuiag, Aipus, Widul, Warukuikul Talab and Talab , Queensland, Australia|
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|The determination area comprises land and inland waters of Mabuiag Island, Koiksugai (Red Fruit) Islet, Aipus Island, Marte Islet, Yadi (Iadi) Islet, Widul Island, Pururai Islet, Pulu Islet, Kamutnab Islet, Mipa Islet, Kongan Rock, Warukuikul Talab (Warakuikul Tabab) Island, Talab (Florence) Island, Kaub Islets, Poigilag (Puigulag) Islet, Pelican Islet, Subur Islet and Bupu (Passage) Islet, but not including the following: (a). Lot 42, The Corporation of the Synod of the Diocese of Carpentaria for church purposes; (b). roads; (c). land east of the Community Hall on which the Telstra mast and equipment shelter are located, including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation; (d). land on which Ergon Energy Corporation power station is situated including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation; (e). the airstrip.|
|Legal Status:||Registered on the National Native Title Register o|
|Legal Reference:||Federal Court No: QG6062/98 National Native Title|
|Subject Matter:||Native Title | Recognition of Traditional Rights and Interests | Recognition of Native Title or Traditional Ownership | Native Title | Housing, Construction and Infrastructure|
|Mabuiag People v State of Queensland  FCA 1065|
Between: Mabuiag People (APPLICANTS) AND
State of Queensland, Torres Strait Regional Authority, Telstra Corporation Limited, Ergon Energy Corporation Limited and Others (Al Moller-Nielsen, Barry Ehrke, Barry Wilson, Bernard Bradley, Bruce Rose, Carl D'arguiar, Darryl O'hanlon, Frank Swinburne, Mark Millward, Mark Willis, Neville Davies, Paul Green, Phillip Hughes) (RESPONDENTS)
Judge: Drummond J
Where: Mabuiag Island
Determination: Native title exists in the determination area as shown on the map annexed to the Order and marked 'Annexure A'.
|The consent determination declared that the Mabuiag People held native title and were therefore the common law holders of the land in the claim area. Their native title rights and interests ensure they may posses, occupy, use and enjoy the land subject to their traditional laws and customs. The nature and extent of these rights was explored in further detail by Justice Drummond in the consent determination. The native title will be held in trust by the Gumulgal (Torres Strait Islanders) Corporation. As with the majority of consent determinations, the orders were made in respect of land that was either unallocated crown land, reserved land or land already held by, or for the benefit of, Aboriginal or Torres Strait Islander People. The claim excluded certain roads, two lots of land, particular land used by the Telstra Corporation and the Ergon Energy Corporation and an airstrip.|
There were a number of other rights and interests in the claim area that were recognised by the consent determination. They include the powers of the Mabuiag Island Council under the Community Services (Torres Strait) Act 1984 to discharge the functions of local government in accordance with the Deed of Grant in Trust granted on 17 October 1985 to the Mabuiag Island Council under the Land Act 1962. The rights and interests of the Mabuiag Island Council and persons under the Deed in Grant of Trust are also protected, along with the interests of a lease holders granted leases under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985.
The consent determination recognises the rights and interests of other Indigenous peoples in the area, hence Indigenous Papua New Guinea persons are entitled to have access to the determination area for traditional purposes. The rights and interests of both Papua New Guinea and Australia in the claim area are further protected by the Treaty between Australia and the Independent State of Papua New Guinea concerning the area known as the Torres Strait, and Related Matters.
The interests of the Telstra Corporation Limited and Ergon Energy Limited are protected in the exercise their statutory functions, operation of their facilities and maintenance of their infrastructure. Both corporations have their rights additionally protected by separate Deeds of Agreement with the representatives of the native title holders. The Crown and the State of Queensland also hold interests pursuant to any statute or valid executive or legislative act that was current at the date of this determination. The rights and interests of other parties prevail over the rights and interests of the native title holders when they cannot exist concurrently.
Justice Drummond noted that native title was subject to extinguishment by either the lawful powers of the Commonwealth or State of Queensland or the lawful grants or creation of interests pursuant to the laws of the Commonwealth or State of Queensland.
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