Agreements, Treaties and Negotiated Settlements Project

Saibai People v State of Queensland [1999] FCA 158 (12 February 1999)
Binomial Name:	Federal Court of Australia
Date:	12 February 1999
Sub Category:	Consent Determination (Native Title Act)
Place:	Saibai, Mawalmay, Thoera, Thawpay, Kawamag and Kuy
State/Country:	Queensland, Australia
	The determination area comprises land and inland waters of Saibai Island, Mawalmay Thoera Island, Thawpay Kawamag Island and Kuykuthal Kawamag Island on the landward side of the high water mark.

Legal Status:	Registered on the National Native Title Register o
Legal Reference:	Federal Court No: QG6017/98; National Native Title
Subject Matter:	Native Title \| Recognition of Native Title or Traditional Ownership \|
URL:	http://www.austlii.edu.au/au/cases/cth/federal_ct/1999/158.html
Summary Information:
Saibai People v State of Queensland [1999] FCA 158 Between: Saibai Island Community (APPLICANTS) AND State of Queensland, Saibai Island Community Council, Far North Queensland Electricity Corporation, Telstra Corporation Limited, Torres Strait Regional Authority and Others (RESPONDENTS) Judge: Drummond J Where: Cairns Determination: Native title exists in relation to the determination area which includes the land and inland waters if Saibai Island, Mawalmay Thoera Island, Thawpay Kawamag Island and Kuykuthal Kawamag Island on the landward side of the high water mark but not including areas listed in paragraph 1 (a) to (u).
Detailed Information:
The consent determination declared that the Saibai People were the common law holders of the land in the claim area. It determined that the communal and group rights comprising native title gave the Saibai People the right to posses, occupy and enjoy the determination area in accordance with, and subject to, their traditional laws and customs, and subject to the lawful force and operation of the Commonwealth and the State of Queensland. The details of the particular rights and interests of the native title holders was set out by Justice Drummond in the consent determination. The land will be held on trust for the native title holders by the Saibai Mura Buway (Torres Strait Islanders) Corporation. As with the majority of consent determinations, the orders were made in respect of land that was either unallocated crown land, reserved land or land already held by, or for the benefit of, Aboriginal or Torres Strait Islander People. The claim area excluded Crown reserves used for schools, certain roads, a dam, an airstrip, some parts of land used by the Telstra Corporation and the Far North Queensland Electricity Corporation, parts of lots and whole lots of land occupied by various public and private buildings. There were a number of other interests in the claim area that are recognised by the consent determination. It recognises the rights and interests of other Indigenous peoples in the area, hence Indigenous Papua New Guinea persons are entitled to have access to the determination area for traditional purposes, subject to prior permission in accordance with those traditional laws and customs. In particular, the Indigenous inhabitants of Dauan Island and Boigu Island may enter, live upon and use the claim area in accordance with the traditional customs and traditions of the common law holders. The rights and interest of both Papua New Guinea and Australia in the claim area are further protected by 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 the Torres Strait, and Related Matters. Other interests that are recognised, include the powers of the Saibai Island Council under the Community Services (Torres Strait) Act 1984 to discharge the functions of local government of the area of the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962. The interests of the Far North Queensland Electricity Corporation Limited and the Telstra Corporation Limited are protected in the exercise their statutory functions, operation of their facilities and maintenance of their infrastructure. Both corporations have their rights additionally protected by separate Deeds of Agreement with the Saibai Mura Buway (Torres Strait Islanders) Corporation, who is the representative of the native title holders. The Crown and the State of Queensland also hold interests pursuant to any statute or valid executive or legislative act that was current at the date of this determination. The rights and interests of other parties prevail over the rights and interests of the native title holders when they cannot exist concurrently.