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

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.

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