Agreements, Treaties and Negotiated Settlements Project

Lota Warria on behalf of the Poruma and Masig Peoples v State of Queensland and Ors [2005] FCA 1117 (15 August 2005)
Binomial Name:	Federal Court of Australia
Date:	15 August 2005
Sub Category:	Consent Determination (Native Title Act)
Place:	Garboi Island (or Arden Island), Torres Strait
State/Country:	Queensland, Australia
	The determination area consists of the land and waters on the landward side of the High Water Mark of Lot 5 on USL 36850 being part of the island known as Garboi.

Legal Status:	Registered on the National Native Title Register
Legal Reference:	Federal Court file no: QUD6042/01; Tribunal file n
Alternative Names:	Garboi Native Title Determination
Subject Matter:	Native Title \| Recognition of Native Title or Traditional Ownership \| Recognition of Traditional Rights and Interests
Summary Information:
Lota Warria on behalf of the Poruma and Masig Peoples v State of Queensland and Ors [2005] FCA 1117 (15 August 2005) Between: Lota Warria on behalf of the Poruma and Masig Peoples (APPLICANT) AND The State of Queensland and Ors (RESPONDENTS) Judge: Black CJ Where: Melbourne Determination: Native title exists in the entire determination area. The determination recognises that the persons holding the communal and group rights are the people described in Schedule 2 of the determination, being the Poruma and Masig Peoples. These are: '(a) the descendants of one or more of the following apical ancestors: Wawa, Mapoo, Baki, Ulud, Laieh, Gauid, Kalai, Aclan, Alau Messiah, Apelu, Asiah Messiah, Auara, Gewe Jack, Kudin, Ikasa, Maudar, Sidmu, Seregay, Tabu, Wabu, Ahgai, Gaibiri and Susui; and (b) 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.' The area covered by the determination is illustrated in Schedule 1 to the determination. Native title exists in relation to the land and waters on the landward side of the High Water Mark of Lot 5 on USL 36850 being part of the island known as Garboi. (See Order 1). Native title is held by the Poruma and Masig Peoples. The native title rights and interests identified in Order 1, held by the Poruma and Masig Peoples are rights to possession, occupation, use and enjoyment of the determination area to the exclusion of all others. The native title right in relation to water 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.' (See Order 4). 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 the traditional laws and customs observed by the Native Title Holders. Other (non-native title) interests recognised in the area are set out in Schedule 3 (see Order 6). These include the interests of the Torres Strait Shire Council as Local Government, the interests recognised under the 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, and any other interests that may be held by reason of the force or operation of Commonwealth or State laws, including the common law. The relationship between the native title and other interests is that: '(a) the other interests continue to have effect and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of native title; and (b) the other interests and any activity done in exercise of the rights conferred by or held under the other interests prevail over the native title and any exercise of the native title.' (See Order 7).
Detailed Information:
The determination arose from an application made in 2001 on behalf of the Masig and Poruma Peoples for a determination in respect of Garboi or Arden Island in the Torres Strait. The claim covered the entire area of the island except for a small area at the western end subject to a lease to the Australian Maritime Safety Authority. The main respondent to the application is the State of Queensland. There are also 19 other respondents including: Danny George Brownlow; Guy Stewart and Beverley Joan Bruce; Carl Daguiar; Barry Ehrke; Robert George Giddins; Larry and Pamela Hudson; Richard Laurence Jones; Bob Lamacchia; Noel and Ken Lollback; Robert Bruce Lowden; Steven MacDonald; Mark Millward; Alison Newbold; Peter J Palkhe; Bruce Rose; Karen Skudder; Robert Stephan John Standen; Mark Willis; and Barry Wilson. In its reasons, the Court noted the 'continuous, spiritual and cultural connection of the Masig and Poruma Peoples' with Garboi and that the island 'occupies an important role in the belief system of the claimants'. It also commented that the Poruma and Masig Peoples are 'settled on nearby islands and visit Garboi frequently to cultivate and harvest its land, to hunt and to fish, to camp and to picnic, and for other purposes.' These factors, amongst others, satisfied the Court that it was appropriate to grant the orders as agreed by the parties to the application. The Court noted in conclusion, that the order does not grant native title to the Poruma and Masig Peoples, but rather 'recognises what they have long held.' (See para 16.)