Masig People v State of Queensland  FCA 1067 AND Damuth People v State of Queensland (7 July 2000)
|Federal Court of Australia
|7 July 2000
|Consent Determination (Native Title Act)
|Torres Strait Islands
|In Both Determinations:
The determination area comprises land and inland waters of Masig (Yorke) Island, Kadal (Kodall) Islet, Umaga (Keats) Island, Igaba (Marsden) Island, Kabbikane Islet, Mimay (Mimi) Islet, Aukane Islet, Yau (Layoak) Islet, Mauar (Rennel) Island, Roag (Smith) Cay, Damuth (Dalrymple) Islet and Bak (Bourke) Island in the Torres Strait, Queensland, but not including the following:
(a). Lot 28 described as SL 43/38565 to the Corporation of the Synod of the Diocese of Carpentaria for church purposes;
(c). The land which comprises Special Lease 43/42976 being land on which the Telstra mast and equipment shelters are situated;
(d). The land on which Ergon Energy Corporation power station is situated including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation; and
(e). The Airstrip.
|Registered on the National Native Title Register o
|Federal Court No: QG6068/98; National Native Title
|Masig People and Damuth People
People of Masig (Yorke Islanders) # 1
Dalrymple (Damuth) Islanders # 1
|Native Title | Recognition of Native Title or Traditional Ownership | Local Government | Native Title |
|Masig People v State of Queensland  FCA 1067 AND Damuth People v State of Queensland
Between: Masig People (APPLICANTS) AND
State of Queensland, Torres Strait Regional Authority, Telstra Corporation Limited, Ergon Energy Corporation Limited, and Al Moller-Nielsen, Barry Ehrke, Barry Wilson, Bernard Bradley, Bruce Rose, Carl D'arguiar, Daryl O'Hanlon, Frank Swinburne, Mark Millward, Mark Willis, Neville Davies, Paul Green, Phillip Hughes.
Damuth People (APPPLICANTS) AND
State of Queensland, Torres Strait Regional Authority, Telstra Corporation Limited, Ergon Energy Corporation Limited and Al Moller-Nielsen, Barry Ehrke, Barry Wilson, Bernard Bradley, Bruce Rose, Carl D'arguiar, Daryl O'Hanlon, Frank Swinburne, Mark Millward, Mark Willis, Neville Davies, Paul Green, Phillip Hughes.
Judge: Drummond J
Where: Masig Island, Torres Strait, Queensland.
Determination: Native title exists in relation to the determination areas.
|These two consent determinations were delivered together as they involve the same applicants, respondents and area of land. The first involves the native title rights and interests of the Masig people and the second the rights and interests of the Damuth People, however the Damuth People are considered to also be Masig People for the purposes of the consent determination. The details of the consent determinations are identical. The land in both claims is to be held on trust by the Masigalgal (Torres Strait Islanders) Corporation.
The consent determination declared that the Masig People were the common law holders of the land in the claim area. The communal and group rights and interests which comprise native title ensure they may posses, occupy, use and enjoy the land subject to their traditional laws and customs. The nature and extent of these rights was explored in further detail by Justice Drummond in the consent determination. 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 excluded certain roads, a lot used by the Corporation of the Synod of the Diocese of Carpentaria, particular land used by the Telstra Corporation and the Ergon Energy Corporation, and an airstrip.
There were a number of other rights and interests in the claim area that were recognised by the consent determination. They include the powers of the Yorke Island Council under the Community Services (Torres Strait) Act 1984 to discharge the functions of local government in accordance with the Deed of Grant in Trust granted on 17 October 1985 to the Yorke Island Council under the Land Act 1962. The rights and interests of the Yorke Island Council and persons under the Deed in Grant of Trust are also protected. In addition, the consent determination recognised the rights and interests of the Mauer (Rennel) Island Torres Strait Islander Land Trust pursuant to a Deed of Grant in Trust which took effect on 5 September 1996 under the Torres Strait Islander Land Act 1991.
The consent determination recognised the rights and interests of other Indigenous peoples in the area, consequently Indigenous Papua New Guinea persons are entitled to have access to the determination area for traditional purposes. 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 the area known as the Torres Strait, and Related Matters.
The interests of the Telstra Corporation Limited and Ergon Energy Limited are protected in the exercise of 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 representatives 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.
Justice Drummond noted that the native title of the Masig People was subject to extinguishment by either the lawful powers of the Commonwealth or State of Queensland or the lawful grants or creation of interests pursuant to the laws of the Commonwealth or State of Queensland.