Thaiday and Ors on behalf of the Warraber, Poruma and Iama Peoples v State of Queensland and Ors  FCA 1116 (15 August 2005)
|Binomial Name: ||Federal Court of Australia|
|Date: ||15 August 2005|
|Sub Category:||Consent Determination (Native Title Act)|
|Place:||Sassie Island (or Long Island), Torres Strait|
|The determination comprises the land and waters on the landward side of the High Water Mark of Lot 39 on Crown Plan TS 215 known as Sassie or Long Island and Lots 19-27, 29, 30, 32, 36-39 and 42-45 on USL 36706.|
|Legal Status: ||Registered on the National Native Title Register|
|Legal Reference: ||Federal Court file no: QUD6015/03; Tribunal file n|
|Alternative Names:||Warraberalgal, Porumalgal and Iama Peoples Consent Determination|
|Subject Matter:||Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Summary Information: |
|Thaiday and Ors on behalf of the Warraber, Poruma and Iama Peoples v State of Queensland and Ors  FCA 1116 (15 August 2005)
Between: Patrick Thaiday, Jack Billy and Jenson Pearson on behalf of the Warraber, Poruma and Iama Peoples (APPLICANTS) AND
The State of Queensland, Torres Shire Council, Geoffrey Featherstone, Larry Hudson, and Peter Tonon (RESPONDENTS)
Judge: Black CJ
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 Warraber, Poruma and Iama Peoples. These are:
'(a) the descendants of one or more of the following apical ancestors:
Kebisu, Rusia, Ausa, Auda, Porrie Daniel, Gawadi, Kelam, Laieh, Gauid, Kalai, Gagabe, Wawa, Mapoo, Baki and Ulud; 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.' (See Schedule 2).
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 39 on Crown Plan TS 215 known as Sassie or Long Island and Lots 19-27, 29, 30, 32, 36-39 and 42-45 on USL 36706. (See Order 1).
The native title rights and interests identified in Order 1, held by the Warraber, Poruma and Iama 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 State of Queensland in reserve 19 over Lot 39 on Crown Plan TS215, and the interests of the people in whom the reserve is vested, the interests, powers and functions of the Torres 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 interests 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 commenced in December 2003 for determination of native title in respect of Sassie (or Long Island) and several adjacent islets. The Court noted the Warraber, Poruma and Iama Peoples 'have well-established spiritual, cultural and physical connection with Sassie'. It also noted the existence of a 'shared normative system of custom [that] has allowed the Warraber, Poruma and Iama peoples to observe and maintain laws determining the ownership of Sassie since the time prior to the assertion of sovereignty by the Crown.' (See para 11). For these reasons and others, the Court found it 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 Warraber, Poruma and Iama Peoples, but rather 'recognises what they have long held.' (See para 14.)|