David on behalf of the Iama People and Tudulaig v State of Queensland [2004] FCA 1576

Category: Agreement
Date: 13 December 2004
Sub Category:Consent Determination (Native Title Act)
Location:Torres Strait, Queensland, Australia
Yam Island, Zagai Island (or Jeaka Island); Tud Island and Cap Islet (or Mukar Islet or Muquar Islet) 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 13 on Plan TS177 being part of the island referred to as Yam Island excluding the areas described as: (i) Lots 4-6 on Plan AP9680; and (ii) Lease A on deposited Plan 149845 in Lot 13 on Plan TS177; (b) Lot 40 on Plan TS216 referred to as Zagai Island or Jeaka Island; (c) Lot 42 on Plan TS216 referred to as Tudu island; and (d) Lot 44 on Plan TS216 referred to as Cap Islet or Mukar Islet or Muquar Islet.
Legal Status: Registered on the National Native Title Tribunal R
Legal Reference: Federal Court file no.: QUD6052/98; Tribunal file
Alternative Names:
  • Yam Islanders/Tudulaig People Consent Determination
  • Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests | Native Title
    URL: http://www.austlii.edu.au/au/cases/cth/federal_ct/2004/1576.html
    Summary Information:
    David on behalf of the Iama People and Tudulaig v State of Queensland [2004] FCA 1576

    Between: Lui David, Charles David, Silen David, Cyril Stephen, Philomena David, and Patrick Thaiday on behalf of the Iama People and Tudalaig (APPLICANTS) AND
    State of Queensland, Torres Strait Regional Authority, Ergon Energy Corporation Ltd, Telstra Corporation Ltd, Queensland Seafood Industry Association Inc. (RESPONDENTS)

    Judge: Cooper J

    Where: Yam 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 Yam Islanders/Tudulaig People, and 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, 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 13 on Plan TS177 being part of the island referred to as Yam Island excluding the areas described as:
    (i) Lots 4-6 on Plan AP9680; and
    (ii) Lease A on Deposited Plan 149845 in Lot 13 on Plan TS177;
    (b) Lot 40 on Plan TS216 referred to as Zagai Island or Jeaka Island;
    (c) Lot 42 on Plan TS216 referred to as Tudu Island; and
    (d) Lot 44 on Plan TS216 referred to as Cap Islet or Mukar Islet or Muquar Islet.

    Native title is held by the Yam Islanders/Tudulaig People as described in Schedule 3.

    The native title rights and interests identified in Order 1, held by the Yam Islanders/Tudulaig 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, 5, 6 and 7.

    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 Yam Islanders/Tudulaig 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 Iama Island Council and the beneficiaries under deed of grant No. 21296138; the interests of the Urapan Tubudal Gal Land Trust and the beneficiaries under deed of grant No. 40032519; the interests of the State of Queensland in: (i) Reserve 21 over Lot 40 on Plan TS216; and (ii) Reserve 201 over Lot 44 on Plan TS216; the interests of the State of Queensland under an Indigenous Land Use Agreement dated 22 November 2004; the interests of Ergon Energy Corporation Ltd as the owner and operator of electricity generation (including the rights and interests under an Indigenous Land Use Agreement dated 25 November 2004 between the Native Title Holders and Ergon Energy Corporation Ltd); the rights and interests of Telstra Corporation Ltd as the owner and operator of telecommunications facilities within the Determination Area (including those under an Indigenous Land Use Agreement dated 29 November 2004 between the Native Title Holders and Telstra Corporation Ltd ); the interests of the State of Queensland in the accommodation facilities located within the areas described as Lease B on Crown Plan 825770 in Lot 13 on Plan TS177 and Lease S on Deposited Plan 151800 in Lot 13 on Plan TS177; any interests under an application under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld); the powers of the Iama 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 40, 42 and 44 on Plan TS216; 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. Q12004/038) on the Register of Indigenous Land Use Agreements on 24 May 2005.

    The native title is to be held in trust by the Mugani Lagaugal (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 filed on 18 June 1996. The application was made by Mr Lui David, Mr Charles David, Ms Silen David, Mr Cyril Stephen, Ms Philomena David and Mr Patrick Thaiday on behalf of the Iama People and Tudulaig of Yam Island in the Torres Strait. The main respondent to the determination application is the State of Queensland.

    The original application was amended to combine four claimant applications by Iama People into one application. The application was further amended 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 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
  • Yam Islanders / Tudulaig People Indigenous Land Use Agreement (ILUA)
  • Yam Island - Ergon Energy 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 Yam Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Federal Court of Australia
  • National Native Title Tribunal
  • State of Queensland - Respondent
  • Magani Lagaugal (Torres Strait Islanders) Corporation
  • Torres Strait Regional Authority - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Telstra Corporation Limited - Respondent
  • Queensland Seafood Industry Association - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld)
  • Community Services (Aborigines) Act 1984 (Qld)
  • People
  • Tudulaig People
  • Iama People
  • David on behalf of the Iama People and Tudulaig - 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) David on behalf of of the Iama People and Tudulaig v State of Queensland [2004] FCA 1576 (13 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: Yam Islanders/Tudulaig People

    Glossary

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