Erubam Le (Darnley Islanders) #1 v Queensland  134 FCR 155
Judges: Back CJ, French and Cooper JJ
In Erubam Le (Darnley Islanders) #1 v Queensland  134 FCR 155, a unanimous decision of the full bench held that public works constructed or established before 24 December 1996 extinguished all native title to the area affected and that s 47A of the Native Title Act 1993 (Cth) did not apply.
|The case arose when the Erubam Le (Darnley Islanders) sought a determination of native title with respect to the Island of Erub in the Torres Strait. The effect of certain public works had proved problematic in arriving at a proposed consent determination of native title. As a result, the Erubam Le applied to the court for orders under Federal Court rules which allow the court to make orders regarding the decision of any question before or after any trial in the proceedings. The Court was thus able to make a separate determination as to the legal effect of certain public works on land owned by the Erub Island Council under a Deed of Grant in Trust (DOGIT). These works (undertaken between 1977 and 2002) consisted of a windmill for the purposes of supplying water to residents, a windmill, earth dam storage, reservoir and pipes, residential houses, a reticulated sewerage scheme, a sport and recreation stadium (all of which were the property of the council). and a state school where there was no lease of the area concerned to the state.
The central questions put to the Court were whether the construction or establishment of the above works extinguished native title in relation to the area affected by them; and
if native title had been extinguished by the construction or establishment of any of these works, whether s 47A of the Native Title Act 1993 (Cth) mandated that such extinguishment must be disregarded for all purposes under the NTA, including for the purpose of making a determination of native title under s 225.
The Court found that works constructed prior to 1996 were, under s 23B(7), previous exclusive possession acts (PEPAs) which are deemed to extinguish native title. It was held that the exception in favour of grants or vesting for the benefit of Aboriginal and Torres Strait Islander people under s 23D did not apply here as the creation of a public work is not a grant or vesting. Works performed after 1996 however, were held not to extinguish native title.
As to whether s 47A of the NTA applied to enable the Court to disregard certain extinguishing acts for the purpose of native title, the Court held that the grant of the DOGIT was covered by the provision. However, the Court found that as public works are not a grant or vesting, nor the creation of an interest, the pre 1996 works did not fall withins 47A and their extinguishing effect remains.
Subsequent to this decision, several consent determinations over the area have been negotiated and ultimately approved by the Federal Court.|