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Mosby on behalf of the Kulkalgal People v State of Queensland [2014] FCA 628

Category: Agreement
Date: 19 June 2014
Sub Category:Consent Determination (Native Title Act)
Location:Zuizin Island (also referred to as Halfway Island) in Torres Strait., Queensland, Australia
The Determination Area comprises all of the land and waters on the landward side of the high water mark of Zuizin Island. The land area of Zuizin Island is approximately 16.2 hectares. It is located in the Central Torres Strait group of islands, 70 nautical miles northeast of Thursday Island and 15 nautical miles eastsoutheast of Poruma, 30 nautical miles eastnortheast of Warraber and 22 nautical miles south of Masig.
Legal Status: Registered on the National Native Title Register.
Legal Reference: Tribunal File Number: QCD2014/010; Federal Court File Number: QUD98/2007.
Subject Matter:Native Title
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2014/628.html
Summary Information:
Mosby on behalf of the Kulkalgal People v State of Queensland [2014] FCA 628 (19 June 2014)

Between:

DAN MURRAY MOSBY ON BEHALF OF THE KULKALGAL PEOPLE (applicant);

and

THE STATE OF QUEENSLAND and TORRES SHIRE COUNCIL (respondents).

Judge: Greenwood J

Where made: Thursday Island

Determination:

Native title exists in the entire determination area. It consists of exclusive native title rights (subject to paragraphs 5 and 6 of the consent determination).

Native title is held by the Kulkalgal People and, in particular, the Warraberlgal, Porumalgal and Masiglgal subgroups of the Kulkalgal People.

Native title rights and interests that exist over the determination area consist of the rights to:

- possession, occupation, use and enjoyment of the area to the exclusion of all others subject to paragraphs 5 and 6 of the determination;
- paragraph 5 of the determination extract states that the nature and extent of the native title rights and interests in relation to Water in the Determination Area are limited to the non-exclusive right to take and use the Water for personal, domestic and non-commercial communal purposes.

The native title rights and interests are subject to and exercisable in accordance with:

Paragraph 6 of the consent determination extract states that the native title rights and interests are subject to and exercisable in accordance with:
- the Laws of the State and the Commonwealth; and
- the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

There are no native title rights in or in relation to:

- minerals as defined by the Mineral Resources Act 1989 (Qld);
- petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

Non-native title rights and interests that exist within the determination area:

(a) the rights and interests of the State of Queensland in Reserve 65 (Reserve for the Use of the Aboriginal Inhabitants of the State), the interests of any persons in whom it is vested and the interests of the persons entitled to access and use the reserve for the purpose for which it is reserved;
(b) the rights and interests of the Torres Shire Council as the local government for the Determination Area, including the rights of its employees, agents and contractors to enter upon the Determination Area for the purpose of performing Council's powers and responsibilities under the Local Government Act 2009 (Qld);
(c) Subject to the laws of Australia, a customary right, if any, that:
(i) is held by a person or persons who: live in the Protected Zone or the adjacent coastal area of Papua New Guinea (as each is defined in the Treaty); is a citizen, or are citizens, of Papua New Guinea; and maintain traditional customary associations with areas or features in or in the vicinity of the Protected Zone in relation to their subsistence or livelihood or social, cultural or religious activities;
(ii) applies within the determination area;
(iii) is recognised by the law of Australia;
(iv) does not purport to authorise the control of access to or conduct in the determination area by any person; and
(v) involves free movement or the performance of lawful traditional activities within the Determination Area.
(d) any other rights and interests held by the State or the Commonwealth, or by reason of the force or operation of the Laws of the State and the Commonwealth.

The relationship between the native title rights and interests and the non-native title rights and interests is that:

- the other interests coexist with the native title rights and interests;
- the determination does not affect the validity of those other interests; and
- to the extent of any inconsistency, the native title rights and interests yield to the other interests referred to in Schedule 3.

Provisions relevant to the Native Title rights:

- the native title is held in trust;
- the Kulkalgal (Torres Strait Islanders) Corporation RNTBC (ICN 3915), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(a) be the prescribed body corporate for the purpose of s 56(1) of the Native Title Act 1993 (Cth); and
(b) perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming the registered native title body corporate.
Detailed Information:
Background

The application for a determination of native title under s 13(1) and s 61(1) of the Native Title Act by the applicant on his own behalf and on behalf of the Kulkalgal People was filed on 29 March 2007. The application was registered on the Register of Native Title Claims and the notification period for the purposes of s 66 of the Native Title Act closed on 9 January 2008.

Details of Judgement

As a result of a number of directions hearings, case management hearings and a successful mediation process, the parties to the application reached agreement that native title rights and interests exist in the Determination Area. The parties have also agreed upon the content of those native title rights and interests in the Determination Area.

Related Entries

Organisation
  • Kulkalgal (Torres Strait Islanders) Corporation
  • State of Queensland - Respondent
  • Torres Shire Council - Respondent
  • People
  • Kulkalgal People
  • Dan Murray Mosby on behalf of the Kulkalgal People - Native Title Applicants

  • Documents

    Map
    Mosby on behalf of the Kulkalgal People v State of Queensland [2014] FCA 628 - Schedule 1 Determination Area - ( PDF)
    Mosby on behalf of the Kulkalgal People v State of Queensland [2014] FCA 628 - Consent Determination Extract - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Applicant | Claimant Application (Native Title Act 1993 (Cth)) (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Native Title Applicants | Native Title Registers | Native Title Determination (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | National Native Title Tribunal (NNTT) (Australia)

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