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Stephen on behalf of the Ugar People v State of Queensland [2004] FCA 157 | | Binomial Name: | Federal Court of Australia | | | Date: | 9 December 2004 | | | Sub Category: | Consent Determination (Native Title Act) | | Place: | Torres Strait | | State/Country: | Queensland, Australia | | Stephens Island (or Ugar Island), Campbell Island and Pearce Cay 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 Stephens Island or Ugar Island of Lot 7 on Plan TS174, Lot 44 on Plan TS203 referred to a Campbell Island; and Lot 60 on Plan TS242 referred to as Pearce Cay. | | | | Legal Status: | Registered on the Native Title Register | | | Legal Reference: | Federal Court file no.: QUD6076/98; Tribunal file | | | Alternative Names: | Ugar (Stephens Islanders) #1 Consent Determination
| | Subject Matter: | Native Title | | Summary Information: | | | Stephen on behalf of the Ugar People v State of Queensland [2004] FCA 157
Between: Napau Pedro Stephen on behalf of the Ugar People (APPLICANT) AND
State of Queensland, Torres Strait Regional Authority, Ergon Energy Corporation Limited, Telstra Corporation Limited, Queensland Seafood Industry Association Inc (RESPONDENTS).
Judge: Cooper J
Where: Ugar 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 Ugar 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 7 on Plan TS174 being part of the island referred to as Stephens Island or Ugar Island excluding the areas described as:
(i) Lease T on Deposited Plan 175711 in Lot 7 on Plan TS174;
(ii) Lease A on Deposited Plan 127009 in Lot 7 on Plan TS174;
(b) Lot 44 on Plan TS203 referred to as Campbell Island; and
(c) Lot 60 on Plan TS242 referred to as Pearce Cay.
Native title is held by the Ugar People and Torres Strait Islanders as described in Schedule 3.
The native title rights and interests identified in Order 1, held by the Ugar 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 and 5.
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 Ugar 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 Ugar Island Council and the beneficiaries under deed of grant No. 21296135; the interests of the State of Queensland in Reserve 96 over Lot 44 on Plan TS203, 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 Napau Pedro Stephen; 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 Limited as the owner and operator of telecommunications facilities within the Determination Area, its statutory rights and rights under an indigenous land use agreement between the Native Title Holders and Telstra Corporation Limited dated 29 November 2004; the interests of the State of Queensland in the community health centre located within the area described as Lease H on Deposited Plan 150253 in Lot 7 on Plan TS174; any interests under an application under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld); the powers of the Ugar 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 44 on Plan TS203, and Lot 60 on Plan TS242; 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. QI2004/041)) on the Register of Indigenous Land Use Agreements on 24 May 2005.
The native title is to be held in trust by the Ugar Kem Le Ged Zeuber Er Kep Le (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: | | | The application for determination of native title was filed on 23 June 1996. Mr Joseph Wacando Stephen (Jnr) was the original named applicant in this claim made on behalf of the people of Ugar (Stephen) Island in the Torres Strait. Following his death, Mr Napau Pedro Stephen proceeded as the named applicant on behalf of the Ugar People. 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. 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. | |
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