Mye on behalf of the Erubam Le v State of Queensland [2004] FCA 1573

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 8 December 2004
Sub Category:Consent Determination (Native Title Act)
Location:Darnley Island, Torres Strait, Queensland, Australia
Darnley Island 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: (a) Lot 4 on Plan TS156 being part of the island referred to as Darnley Island excluding the areas described as: (i) Lease T on Deposited Plan 175712 in Lot 4 on Plan TS156; and (ii) Lease F on Deposited Plan 150247 in Lot 4 on Plan TS156; (b) Lot 63 on Plan TS66 referred to as Nepean Island; (c) Lot 58 on Plan TS226 referred to as Tobin Cay; (d) Lot 2 on Plan AP8356 referred to as Rebes or Black Rocks; (e) Lot 57 on Plan TS225 referred to as Underdown Islet; and (f) Lot 59 on Plan TS227 being part of the cay referred to as Bramble Cay.
   
Legal Status: Registered on the National Native Title Tribunal R
Legal Reference: Federal Court file no.: QUD6036/98; Tribunal file
Alternative Names:
  • Erubam Le (Darnley Islanders) #1 Consent Determination
  • Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests | Native Title
    Summary Information:
    Mye on behalf of the Erubam Le v State of Queensland [2004] FCA 1573

    Between: George Mye on behalf of the Erubam Le (APPLICANT) AND
    State of Queensland, Australian Maritime Safety Authority, Torres Strait Regional Authority, Ergon Energy Corporation Limited, Telstra Corporation Limited, Queensland Seafood Industry Association Inc (RESPONDENTS).

    Judge: Cooper J

    Where: Erub 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 Erubam Le 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 TS156 being part of the island referred to as Darnley Island excluding the areas described as:
    (i) Lease T on Deposited Plan 175712 in Lot 4 on Plan TS156;
    (ii) Lease F on Deposited Plan 150247 in Lot 4 on Plan TS156;
    (b) Lot 63 on Plan TS66 referred to as Nepean Island;
    (c) Lot 58 on Plan TS226 referred to as Tobin Cay;
    (d) Lot 2 on Plan AP8356 referred to as Rebes or Black Rocks;
    (e) Lot 57 on Plan TS225 referred to as Underdown Islet; and
    (f) Lot 59 on Plan TS227 being part of the cay referred to as Bramble Cay.

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

    The native title rights and interests identified in Order 1, held by the Erubam Le 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 set out above 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 Erubam Le 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 Erub Island Council and the beneficiaries under deed of grant No. 21296129; the interests of the Commonwealth of Australia under registered leases Nos. 705779898 and 705779928; the interests of the Islanders Board of Industry and Service under registered lease No. 706712106; the interests of the State of Queensland in Reserves 113 over Lot 63 on Plan TS66 and 198 over Lot 59 on Plan TS227, the interests of the person in whom the reserve is vested and of the persons entitled to access and use of the reserve; the interests of the State of Queensland under an indigenous land use agreement dated 22 November 2004 between it and George Mye; 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 Australian Maritime Authority in exercising its statutory and other powers; the interests of the State of Queensland in the education facilities referred to as the Darnley Island State School located within the area described as Lease S on Deposited Plan 151792 in Lot 4 on Plan TS156; the powers of the Erub 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 Lot 63 on Plan TS66, Lot 58 on Plan TS226, Lot 2 on Plan AP8356, Lot 57 on Plan TS225 and Lot 59 on Plan TS227; 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(e)). The ILUA was registered (Tribunal no. QI2004/037)) on the Register of Indigenous Land Use Agreements on 24 May 2005.

    The native title is to be held in trust by the Erubam Le Traditional Land and Sea Owners (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:
    This determination arose out of an application for determination of native title filed on 18 June 1996. Mr George Mye, a traditional Erub elder, was named as the applicant on the original application and continued to act as the named applicant in the proceeding. Mr Mye made this claim on behalf of his people of Erub Island in the Torres Strait. Erub Island is situated in the deeper waters of eastern Torres Strait, where the Great Barrier Reef ends. Erub is a high island with numerous volcanic rock outcroppings, thickly vegetated areas and rich deep soils. 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 in the claim. 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
  • 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
  • Erubam Le (Darnley Islanders) Indigenous Land Use Agreement (ILUA)
  • Darnley Island - Ergon Energy Indigenous Land Use Agreement (ILUA)
  • Telstra Darnley Indigenous Land Use Agreement (ILUA)
  • Islanders Board of Industry and Services - Torres Strait Island Regional Council - Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Australian Maritime Safety Authority - Respondent
  • Torres Strait Regional Authority - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Telstra Corporation Limited
  • Telstra Corporation Limited - Respondent
  • Queensland Seafood Industry Association - Respondent
  • National Native Title Tribunal
  • Federal Court of Australia
  • State of Queensland - Respondent
  • Erubam Le Traditional Land and Sea Owners (Torres Strait Islanders) Corporation
  • Legislation
  • Native Title Act 1993 (Cth)
  • People
  • George Mye - Native Title Claimant
  • Erubam Le 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) Mye on behalf of the Erubam Le v State of Queensland [2004] FCA 1573
    Media Release
    National Native Title Tribunal (2004) Torres Strait Islanders' Native Title Recognised through Agreements
    Resource
    National Native Title Tribunal Native Title Determination Summary: Erubam Le (Darnley Islanders) #1

    Glossary

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