People of Dauan Island

Reason Application Name: People of Dauan Island #1 Application (NNTT) No: QC96/83 Application (Fed Crt) No: QLD Region: Queensland Date Application Made: 28/06/96 Date Registration Test 16/06/99 Decision made: Decision: Accepted

S190B(2) Identification of area subject to native title Met

Description of the areas claimed: 190B(2) The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Reasons for the Decision External Boundaries and Map

External Boundaries The external boundaries of the claim area are described at A6 of the original application and schedules B and S of the amended application. There is one material change to the description of the external boundary in the amended application; namely, the land area of Turnagain Island is not included in the claim area. My reasons for reaching this conclusion are detailed above in s62(2)(a)(i).

The claim area consists of a discrete parcel of land being the land area of Dauan Island in the Torres Strait. The land is described as Lot 9 on Survey Plan TS169, Parish Giaka, County of Torres”. The claim area is further described in A6 of the original application as being “the land area of Dauan Island”.

This is an official real property description and is the State’s unique identifying reference for the claim area. The description clearly identifies the area according to the State’s land tenure record system. This land tenure record system enables members of the public to acquire interests in land parcels according to an allocated real property description without there being any need to further identify the external boundaries of the land parcel in question.

Schedule B of the amended application also contains this statement: “By way of clarification, the boundaries of the application extend to the high water mark of Dauan Island.”

The map attached to the application contains the following note: “NOTE:- The boundary of Lot 9 is the foreshore, being Mean High Water Mark at Spring Tides”.

I have considered the printed note on the map and the corresponding statement in schedule B of the amended application. I accept the printed note on the official Queensland government map as being the relevant description of the external boundary for the purpose of administering this test. I consider the applicant’s description at Schedule B as subordinate to the description on the map provided.

Map

The original application contained two maps: · The survey plan referred to in the real property description (TS169) at schedule C depicting the external boundaries of the claim area; · a locality map entitled “The Islands of Torres Strait” at schedule B.

The survey plan attached to the original application is reproduced at attachment C of the amended application and is therefore the only map I need consider.

The survey plan is of Dauan Island and delineates the external boundaries of the claim area. The boundary is finely drawn in black ink. This plan is an official Queensland Department of Mapping and Surveying map for the claim area. It has been prepared using Australian Survey Office data. It contains a certificate by the licensed surveyor who made the map to the effect that it is accurate. It has been compiled from Australian Survey Office plan data and shows approximate AMG co-ordinates.

While the survey plan is not to scale and the co-ordinate points are approximate only, it is part of a public record system upon which members of the community might reasonably rely to deal with land use issues.

I am satisfied that the: · official real property description, coupled with the description of the claim area contained in the amended application; and · plan of survey being Attachment C to the application enable the external boundaries of the claim area to be identified with reasonable certainty. I may not be able to reach that conclusion if the claim area was other than an island.

It follows that I am satisfied that the physical description of the external boundaries meets the requirements of s62(2)(a)(i).

Internal Boundaries

The internal boundaries are described at A6 of the original application. These boundaries are described by a combination of: · exclusion of specific parcels of land; and · exclusion of a couple of tenure classes from the claim area. S190B(3) Identification of native title claim groups Met

Identification of the native title claim group: 190B(3) The Registrar must be satisfied that: (a) The persons in the native title claim group are named in the application; or (b) The persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Reasons for the Decision An exhaustive list of names of the persons in the native title claim group has not been provided. Consequently, the requirements of s.190B3(a) of the Act are not met.

It is therefore necessary for the application to comply with s.190B (3)(b), which states that the application must otherwise describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

To meet this condition of the registration test the description of the group must be sufficiently clear so that it can be ascertained whether any particular person is a member of the native title claim group.

At schedule A of the amended application, a description of the native title claim group is provided in these terms:

“The people of Dauan Island being those persons who are members of the Aragu, Asela, Bigie, Elisala, Gaidan, Harry, Maka, Mau, Mooka, Nawakie and Uta families. All members of these families can trace their descent from the following ancestors: Boingan, Garmai, Jawai, Naiama, Saba, Seik and Siwia. Descent from these ancestors is reckoned cognatically and membership of a family includes persons who have been adopted in accordance with Dauanalgal traditional laws and custom. Adopted children are accorded the same status and rights as birth children through customary law. Children are frequently adopted from one nuclear family to another nuclear family of the mother’s siblings and, in so doing, would be included in the cognatic descent group on either account. Many other possibilities exist however and the only definitive rule about who may adopt one’s child is that it will never be a stranger of the parents and is most likely to be a close relative of some sort.”

Thus a person may be reckoned as a member of the native title claim group in two ways: · as a member of the named families and as such, as a descendant of the persons named; · as an adopted member of one of the named families.

I am satisfied that the descendants of the named persons could be identified with minimal inquiry and as such, be ascertained as part of the native title claim group.

Schedule A of the amended application sets out what is meant by the inclusion of persons adopted as members of the named families “in accordance with Dauanalgal traditional law and custom”. It is stated that adopted children are accorded the same status and rights as birth children through customary law. It is stated that there are many possibilities in which adoption will take place (including the frequent adoption from one nuclear family to another nuclear family of the mother’s siblings) with the one definitive rule being that the proposed adoptive parents will never be a stranger of the parents and is most likely to be a close relative of some sort.

The concept of adoption in accordance with Dauanalgal traditional law and custom is further clarified in a letter from the applicant’s legal representative dated 2 March 1999. In that letter it is stated that the applicant considers adoption a perfectly intelligible concept across cultures that does not require extrapolation. Reliance is placed on the Concise Oxford Dictionary, which defines “adopt” as “1. take a person into a relationship, esp. another’s child as one’s own”. It is stated that “this definition is precisely what it means in Torres Strait Islander society. In practice this means that an adopted child may have the same rights and responsibilities in a family’s affairs as the natural children do, including the right to inherit property.”

I am satisfied that the explanation of what it is meant to be adopted in accordance with Dauanalgal traditional law and custom is sufficiently clear for it to be possible to ascertain whether any particular person has been adopted into the Dauan Island claim group.

I consider that the following factors would enable it to be determined with relative ease whether or not a person has been adopted by one of the named families: · the use of the terminology that “adopted children are accorded the same status and rights as birth children through customary law” · the explanation of the meaning of adoption in the letter of 2 March 1999; · the statement of the one definitive rule in relation to when adoption is not permitted (ie to a person who is a stranger to the parents); and · the isolated and close community lifestyle of the claim group.

I am therefore satisfied that this description constitutes an objective means of verifying the identity of members of the native title claim group such that it can be clearly ascertained whether any particular person is in the group.

The requirements of this section are met. S190B(4) Identification of claimed native title Met

Identification of claimed native title 190B(4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

Reasons for the Decision

For the application to pass this condition of the registration test I must be satisfied that the native title rights and interests claimed by the native title claim group can be readily identified.

The native title rights and interests claimed by the native title claim group are found in A9 of the original application.

The native title rights and interests claimed may be broadly categorised as the right to: 1. possess, occupy, use and enjoy the claim area, including the natural resources therein and “the abovementioned surrounding seas”; 2. inherit, dispose of, or deal among themselves with their rights and interests in the claimed areas; 3. to hunt, fish, forage and gather natural resources within the claimed areas; 4. to trade in the natural resources; 5. to conduct social, religious, cultural and economic life upon or within the claimed areas.

I note that the first mentioned right refers to “the abovementioned surrounding seas”. In a letter dated 5 February 1999, the applicant’s legal representative advised, by way of clarification that to the extent that paragraph A9 of the original application makes reference to “the abovementioned surrounding seas”, this provision can be ignored as the previous paragraphs of the claim do not mention any such seas. Indeed no reference is made elsewhere in the original application (including in the definition of the area covered by the claim in A6 of the application) to surrounding seas, and I accept that the reference to same in A9 is an error or drafting mishap on the part of the author of the document.

To meet the requirements of s190B4 I need only be satisfied that at least one of the rights and interests sought is sufficiently described for it to be readily identified.

I am satisfied that all of the rights and interests listed can be readily identified from the description provided at A9 of the original application.

The application therefore meets the requirements of s190B4 and s62(2)(d).

S190B(5) Factual basis for claimed native title Met Sufficient factual basis: 190B(5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; (c) that the native title claim group has continued to hold the native title in accordance with those traditional laws and customs.

Reasons for the Decision

There are three criteria to consider in determining over all whether or not I am satisfied that there is a sufficient factual basis to support the applicants’ assertion about the existence of the native title rights and interests listed at A9 of this application.

At Schedule F of the amended application, the applicant states that the evidence produced to support the assertions in s190B5 is an affidavit at Attachment F of the amended application. This is a document entitled “Affidavit” dated 27/1/99 and signed by the applicant, (name deleted). I note that the order of the Federal Court dated 14 May 1999, by which leave to amend the application was granted, made the leave subject to the substitution of the word “affidavit” for the word “statement” in schedules F and M of the amended application and in attachment F. The document in attachment F is therefore properly called a statement, not an affidavit. I note that it is signed in the presence of a solicitor and is expressed to have been “sworn”. Although it may not satisfy the procedural requirements to amount to an affidavit, I find that the circumstances in which it was signed to have been sufficiently solemn for the deponent to have regard to the need for it to be truthful. There is nothing before me to doubt the truthfulness of the statement.

I find the evidence of (name deleted) on these issues probative in light of his statement that he is a senior traditional owner of the claim group and the owner of land within the claim area, who has lived on the claim area all of his life (paras. 2 & 7(a)).

I have also identified the following further relevant and probative material with respect to the requirements s190B5: 1) the relatively unique historical aspects of this claim as referred to in A5 and A11 of the original application (the truth of which is sworn to by (name deleted) in the affidavit accompanying the original application), and in correspondence from the applicant’s legal representative dated 5 February 1999; 2) the fact that the whole of the claim area is the subject of a DOGIT in favour of the island inhabitants (refer to my reasons above in relation to s190B2, under the heading “Internal Boundaries”). The DOGIT is a freehold title granted in favour of the island inhabitants by the Queensland State Government, and although not conclusive as to the factual basis for the assertions in s190B5, it is certainly persuasive as to the making out of the factual basis for the assertions in s190B5.

I will now deal with each of the three criteria to be satisfied under this section. 190B(5)(a) – that the native title claim group have, and the predecessors of those persons had, an association with the area.

To be satisfied under this criterion, it must be evident that the association with the area is and was communal, that is, shared by a number of members of the native title claim group.

· (name deleted) (27/1/99) provides a factual basis for the above condition in his statement by describing: · how he is a senior traditional owner of the native title claim group and how he has lived on the claim area all his life with other traditional owners (paras. 1 & 2); · how “our” forefathers lived on Dauan Island before “us” and were also traditional owners of Dauan Island (para. 3); · examples of how the Dauan Islanders have an acknowledged system of traditional laws and customs, namely, land ownership (para. 6), passing of land to others (paras. 6 & 7(b)), use and enjoyment of land and natural resources (para. 7(a)); · traditional laws, customs and practices that he and other members of the native title claim group have observed and carried out on the claim area, such as hunting foraging, gardening, visiting culturally significant sites, conducting burials and tomb stone openings and participating in festivals and traditional dancing (paras. 7(b), 7(c), 7(e)); · the trade in which he and other members of the claim group have engaged in items such as food and mats (para. 7(d); · how even though some traditional landowners live elsewhere, they have maintained their connections and associations with the claim area (para. 4).

I refer also to the statement at A5 of the original application to that the native title claim group is descended from “people who occupied the claimed areas from time immemorial and from when the Island was annexed to the State of Queensland in 1879, and have continuously occupied the claimed areas to present time”. I find this statement probative as to the claim group’s current association with the claim area, and the association of their predecessors with the claim area.

I also reiterate that I find it probative that the Queensland State Government has granted to the island inhabitants a Deed of Grant in Trust, being a form of freehold title over the entire claim area. This fact is averred to in A9 of the application and a copy of the title search details accompanies the amended application. Finally, I have taken note of the following assertions in correspondence (5/2/99) from the applicant’s legal representative in relation to the requirements of s190B5:

“Some 150 members of the native title claim group presently enjoy, occupy, live on and use the claim area. They do so with a high degree of autonomy consistent with the practices and customs of their parents, grand-parents, great grand-parents and other ancestors dating back to the time of the original assertion of sovereignty by the British Crown over the claim area and beyond. Neither the native title claim group nor their predecessors have ever been dispossessed of their land.

In continuing to live on the claim area, the native title claim group acknowledge and observe wide ranging traditional laws and customs including those relating to land ownership . . . .

These forms of cultural expression of the native title claim group represent a dynamic continuum that continues to be held to the present and forms the basis of their native title to the claim area.”

This statement is contained in a letter by the Native Title Representative Body for the area in which the claim area is situated dated 5 February 1999. In the course of its duties (and in order to provide the s202(4)(d) certificate) I would imagine that the Representative Body has access to historical records and has observed the claim group’s activities and participation in Island life and culture. I therefore accept that the Rep. Body is qualified to make these assertions and find the statement to be probative and helpful in deciding that the requirements of this limb of s190B5 are met.

All of the above referred to material generally establish: · a long history of a community having a connection with the Island; · the predecessors of the claim group having an association with the Island.

190B(5)(b) – that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests.

This subsection requires me to be satisfied that: traditional laws and customs exist; those laws and customs are respectively acknowledged and observed by the native title claim group; and those laws and customs give rise to the claim to native title rights and interests.

The statement at attachment “F” by (name deleted) provides a factual basis for the above condition by describing how he is a senior traditional owner and land owner, who has lived on the Island with other traditional owners all of his life, and by describing traditional laws observed in relation to land ownership and transmission and traditional customs and practices that he and other members of the native title claim group S190B(6) Prima facie case Met

Prima facie case: 190B(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Reasons for the Decision ‘Native title rights and interests’ are defined at s223 of the Native Title Act. This definition specifically attaches native title rights and interests to land and water, and in summary requires: A. the rights and interests to be linked to traditional laws and customs; B. those claiming the rights and interests to have a connection with the relevant land and waters; and C. those rights and interests to be recognised under the common law of Australia.

The definition is closely aligned with all the issues I have already considered under s190B5. I will draw on the conclusions I made under that section in my consideration of s190B6, rather than reconsider these requirements against each individual right and interest sought.

Under s190B6 I must consider that, prima facie, at least some of the rights and interests claimed can be established. The term prima facie was considered in North Ganalanja Aboriginal Corporation v Qld 185 CLR 595 by their Honours Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, who noted: "The phrase can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase "prima facie is: "At first sight; on the face of it; as it appears at first sight without investigation." [Citing the Oxford English Dictionary (2nd ed 1989)].

I have adopted the ordinary meaning referred to by their Honours when considering this application.

In deciding which native title rights and interests claimed can prima facie be established I have relied on the statement of (name deleted) (27/1/99), information contained in A5 and A9 of the original application and the statements in the letter from the applicant’s legal representative dated 5 February 1999 under the heading “Section 190B5”. The content of this material is outlined in my reasons for decision at s.190B5.

The rights and interests claimed by the native title claim group are set forth in A9 of the original application.

I note also that it is stated in schedule E of the amended application that there is no change to the description of the native title rights and interests except that “no native title rights or interests are claimed where such rights have previously been extinguished and such extinguishment is not to be disregarded by virtue of sections 47(2), 47A(2) or 47B(2)”.

I refer to examples of the evidence that prima facie support the claimed native title rights and interests – the context that this evidence was provided is detailed in my reasons for decision at 190B(5).

· The right to possess, occupy, use and enjoy the claimed land and water areas including the natural resources therein and natural resources to the exclusion of all others.

The statement by (name deleted) illustrates how he and other members of the claim group have lived on the claim area and exercised this right in his lifetime. It illustrates how he and other members of the claim group have owned land within the claim area, according to traditional laws and customs. It also outlines how he and other members of the claim group have used and enjoyed the claim area including hunting, foraging, gardening, trading in natural resources.

I note that as described in A9 of the application, this right refers to “the abovementioned surrounding seas, islands”. In a letter dated 5 February 1999, the applicant’s legal representative advised, by way of clarification that to the extent that paragraph A9 of the original application makes reference to “the abovementioned surrounding seas”, this provision can be ignored as the previous paragraphs of the claim do not mention any such seas. Indeed no reference is made elsewhere in the original application (including in the definition of the area covered by the claim in A6 of the application) to surrounding seas or islands, and I accept that the reference to same in A9 is an error or drafting mishap on the part of the author of the document.

I therefore delete reference to the abovementioned seas or islands in this claimed right.

· To inherit, dispose of, or deal among themselves with their rights and interests in the claimed areas.

I find that the statement of (name deleted) dealing with the ownership and inheritance of land on the claim area establishes this right and interest.

· To hunt, fish, forage and gather natural resources within the claimed areas.

I find that evidence in the statement of (name deleted) detailing that the native title claim group and he hunt over the land, forage the land, garden the land and otherwise use and enjoy the land and its natural resources establishes, on a prima facie basis, this right and interest. So far as fishing is concerned, although this activity is not specifically averred to in (name deleted)’s statement, I find that the reference to hunting and using the natural resources of the land, such as plant and animal life (para. 7(a)) sufficiently establishes this right. Even if it was not sufficient, I am of the view that the right to fish off the island shore is a right or interest which relies upon or is parasitic to the native title S190B(7) Physical connection Met

Traditional physical connection: 190B(7) The Registrar must be satisfied that at least one member of the native title claim group: (a) Currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) Previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such holder of a lease.

Reasons for the Decision

Under s 190B(7)(a) I must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application.

The statement by (name deleted) establishes that:

· he is a member of the native title claim group; · he lives on the island and currently has a traditional physical connection with the island the subject of the claim.

I note also that (name deleted) is one of the family names, the members of which are said to be members of the native title claim group (refer schedule A of the amended application).

Based on the statement of (name deleted) as extensively set out in my reasons under s190B5 and 190B6, I am satisfied that he has the requisite physical connection.

The requirements of this condition of the registration test are therefore met.

S190B(8) No failure to comply with section 61A Met

No failure to comply with s61A: 190B(8) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of s61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made. Reasons for the Decision For the reasons that follow I have formed the conclusion that there has been compliance with s61A. s61A(1) – Native Title Determination

A search of the Native Title Register has revealed that there is no approved determination of native title in relation to the area claimed in this application

S61A(2) – Previous Exclusive Possession Acts

A6 of the original application contains details of specific tenures excluded from the claim area, including three crown interests described by lot and held by the Crown for state school purposes, roads and landing grounds for aircraft.

The applicant has not excluded from the claim area any other class or type of tenure referred to in s23B of the Act. However, at schedule E of the amended application, the applicant makes the statement that “no native title rights or interests are claimed where such rights have previously been extinguished and such extinguishment is not to be disregarded by virtue of sections 47(2), 47A(2) or 47B(2)”.

I note in this case, that neither the applicant, nor the Tribunal has obtained a detailed historical tenure search in relation to the claim area. Indeed, because of the remote, sparsely populated and likely simple tenure history of the claim area (given the assertion that it has been predominantly occupied by the native title claim group and their predecessors since contact), the expense and time involved in obtaining a detailed historical search of tenure in the claim area appears unwarranted at this point.

The information held by the Tribunal indicates that the only other likely exclusion possession acts (PEPAS) within the claim area which have not been specifically excluded are: · areas of land used for Telstra facilities (referred to in A7 of the original application); · areas of land used by Far North Queensland Electricity Board (again, referred to in A7 of the original application); · a lease over part of the claim area to the Corporation of the Synod of the Diocese of Carpentaria for 30 years, commencing on 01/01/64 (refer current title search details of the DOGIT title attached to the amended application). I note also that the applicant’s legal representative advised in a facsimile dated 17 February 1999 that he can find no record that the lease was ever renewed. The current search details form is dated 22/06/98 and it makes no reference to the renewal of the lease.

There are certain circumstances when native title may be claimed over a PEPA without there be a failure to meet the requirements of s61A. This is provided for in s61A(4) of the Act, which states that “subsection (2) and (3) {that is, of s61A} does not apply to an application if: (a) the only previous exclusion possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and (b) the application states that section 47, 47A or 47B, as the case may be, applies to it

Schedule L of the amended application notes that “in respect of the whole area of the application, s47A is operative.”

I am of the view that in this matter, the failure to exclude the areas of land covered by these three potential PEPAS is not in breach of s61A as protection of s47A(2) has been sought. I have made additional comments regarding the impact of this section earlier in my s190B2 reasons.

Should it be found that s47A protection is not available to the applicant, I note that the statement in schedule E of the amended application which excludes from the claim area any potentially extinguishing event not to be disregarded by virtue of s47A, has the effect of excluding any other PEPAs in the area claimed.

S61A(3) – Previous Non-Exclusive Possession Acts

There is no information before me to indicate that a previous exclusive possession act lies within the area claimed. Given the remote, sparsely populated nature of the claim area this is not surprising.

In any event, for the reasons outlined above in relation to s61A(2), I am of the view that any previous non-exclusive possession act is to be disregarded by virtue of s61A(4).

S61A(4) – s47, 47A, 47B

The amended application states a Schedule L that “The whole area of the application is held for the benefit of Torres Strait Islanders and is occupied by members of the native title claim group. Accordingly, in respect of the whole area of the application. S.47A is operative.”

The DOGIT referred to is a Deed of Grant in Trust in favour of the Dauan Island Community Council, and is an interest to which the provisions of s47A of the Act apply. S190B(9) No extinguishment etc. of claimed native title Met

Ownership of minerals, petroleum or gas wholly owned by the Crown: 190B(9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (a) (a) to the extent that the native title rights and interests claimed consist or include ownership of minerals, petroleum or gas - the Crown in right of the Common-wealth, a State or Territory wholly owns the minerals, petroleum or gas;

Reasons for the Recommendation

At Schedule Q of the amended application it is stated: “The native title claim group does not claim ownership of minerals, petroleum or gas to the extent to which the Commonwealth or the State wholly owns such minerals, petroleum or gas and such ownership by the Commonwealth or State has wholly extinguished any native title rights in such petroleum, minerals or gas.”

I am satisfied that this statement has the effect that the application complies with the requirements of S190B(9)(a).

Exclusive possession of an offshore place: 190B9 The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (b) (b) to the extent that the native title rights and interests claimed relate to waters in an offshore place - those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place;

Reasons for the Decision

The area claimed does not include any offshore area (refer to my reasons under s190B3, from which it is apparent that the external boundaries of the claim area do not extend to any offshore areas). It is therefore not necessary for me to consider this section further.

Other extinguishment: 190B9 The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that: (c) (c) in any case - the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)). Reasons for the Decision

The application and supporting material and the Tribunal’s file do not disclose nor am I otherwise aware that the native title rights and interests claimed in the application have been otherwise extinguished.

In this regard I rely on the statement in schedule E of the amended application to the effect that “no native title rights or interests are claimed where such rights have previously been extinguished and such extinguishment is not to be disregarded by virtue of sections 47(2), 47A(2) or 47B(2)”.

I am satisfied that the requirements of this section have been met.

S190C(2) Information etc required by sections 61 & 62 Met

Information, etc, required by section 61 and section 62:

190C(2) The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.

Details required in section 61

61(3) Name and address for service of applicant(s)

Reasons relating to this sub-condition

Requirements are met. Page 1 of the amended application identifies the single applicant and the address for service is detailed at page 14 of the amended application.

61(4) Names persons in native title claim group or otherwise describes the persons so that it can be ascertained whether any particular person is one of those persons

Reasons relating to this sub-condition

Requirements are met. The amended application describes the native title claim group at Schedule A, page 2 of the amended application. In my view the description of the claim group is sufficient for it to be ascertained whether any particular person is one of those persons. I have reached this view for the reasons contained in my decision at s.190B3.

61(5) Application is in the prescribed form Note that in relation to pre 30.09.98 applications, the application does not need to be in the prescribed form as required by the amended Act. Note also that pre 30.09.98 applications are deemed to have been filed in the Federal Court., lodged in the Federal Court, contain prescribed information Note also that “prescribed information” is that which is required by s62 as set out in the text of this reasons document under “Details required in section 62(1)”., and accompanied by prescribed documents and fee

Reasons relating to this sub-condition

Requirements are met.

The amended application is in the form prescribed by Regulation.5(1)(a) Native Title (Federal Court) Regulations 1998.

As required under section 61(5)(b), the amended application was filed in the Federal Court. The original application is taken to have been made to the Federal Court in accordance with Table A, Application, Savings or Transitional Provisions, item 6 case 3.

The application meets the requirements of section 61(5)(c). I refer to my reasons in relation to s62.

As required by section 61(5)(d) an affidavit and map as prescribed by s62(1)(a) and s62(2)(b) respectively accompany the application. I refer to my reasons below in relation to s62(1)(a) and s62(2)(b) of the Act.

I note that section 190C(2) only requires me to consider details, other information, and documents required by section 61 and 62. I am not required to consider whether the application has been accompanied by the payment of a prescribed fee to the Federal Court.

Details required in section 62(1)

62(1)(a) Affidavits address matters required by s62(1)(a)(i) – s62(1)(a)(v)

Reasons relating to this sub-condition

Requirements are met.

The applicant, (name deleted), has sworn an affidavit addressing the matters required by s62(1)(a)(i) – (v). The affidavit was sworn on 18 March 1999. It forms part of the amended application. The affidavit meets the requirements of s62(1)(a)(i) to s62(1)(a)(iv), at points (i), (ii), (iii) and (iv) respectively.

Point (v) of the affidavit refers to the basis of the applicants’ authorisation, and consequently the requirements of s62(1)(a)(v) are satisfied.

For the reasons set out above, I have formed the view that the application complies with the requirements of this subsection. 62(1)(c) Details of any traditional physical connection (information not mandatory)

Comment on details provided

The native title claim group provides some detail of traditional physical connection in the original application at A9 being a statement of some of the traditional laws and customs observed. There is also some detail of traditional physical connection in A5 of the amended application.

Further detail is contained in a statement by (name deleted) at attachment “F” of the amended application. This affidavit outlines his traditional connection with the land, and the traditional connection of the claim group and their predecessors. I have referred to this information in more detail in my reasons for decision in relation to test conditions 190B(5), 190B(6) and 190B(7).

Details required in section 62(2) by section 62(1)(b)

62(2)(a)(i) Information identifying the boundaries of the area covered

Reasons relating to this sub-condition

Requirements are met.

The boundaries of the area covered by the application are identified by the following information: · One map, being a survey plan attached to the amended application at schedule C. The survey plan of Dauan Island is Survey Plan TS169. The map shows the approximate AMG co-ordinates for the area. The line of the external boundary is finely drawn. The map was produced by the Department of Mapping and Surveying (Qld) (refer licensed surveyor’s certificate, bottom left corner) and registered on 26 June 1985, following a process of authorisation, checking and charting.

· A technical description of the external boundary, which is found at A6(a) of the original application. The description is “the land area of Dauan Island described as lot 9 on Survey Plan TS169 in the parish Giaka, County of Torres in the state of Queensland such survey plans being held by the Queensland Department of Natural Resources (Lands Department) at Brisbane in the State of Queensland having an area of about 355 Ha. I note that the original application included within the claim area Turnagain Island. For reasons set out below, I am reading the amended application to exclude this Island.

· The survey plan of Dauan contains this further information about the external boundary: “NOTE: The boundary of lot 9 is the foreshore, being Mean High Water Mark at Spring Tides.” · Schedule B to the amended application for which leave to amend was obtained on 5 May 1999 reads: “By way of clarification, the boundaries of the application extend to the high water mark of Dauan Island”.

At Schedule S of the amended application, the applicant states “The original application included all the land and in-land waters of Turnagain Island to the high water mark being Lot 7 on survey plan TS222. This amended application does not include the land or in-land waters of Turnagain Island to the high water mark”.

In light of this clear statement at Schedule S, and the contents of recent correspondence passing between the applicant’s representative and the registration test case manager, I have formed the view that the applicant clearly intended to exclude Turnagain Island from his application. Further support for this view is found in the fact that only 1 map accompanies the amended application, being the survey plan for Dauan Island.

To conclude, the application meets the requirements of this condition. See also my reasons for decision provided under s190B(2).

62(2)(a)(ii) Information identifying any areas within those boundaries which are not covered

Reasons relating to this sub-condition

Requirements are met.

At A6 of the original application there is a description of the internal boundaries of the application. The applicants have excluded certain specific tenure grants from the claim area at A6 of the original application. I have outlined the content of A6 of the application in my reasons for decision in relation to test condition 190B(2).

Although the applicant does not identify any other tenure type excluded from the claim area, it is my view that the circumstances of this case do not require such a class exclusion. See further my reasons for decision in relation to the test conditions contained in 190B(2).

62(2)(b) A map showing the external boundaries of the area covered by the application

Reasons relating to this sub-condition

Requirements are met. A map showing the external boundaries is attached to the original application at schedule C, and again in schedule C to the amended application. See reasons provided under s190B2.

62(2)(c) Details/results of searches carried out to determine the existence of any non-native title rights and interests

Reasons relating to this sub-condition Requirements are met.

The requirements of s62(2)(c) can be read widely to include all searches conducted by any person or body. However, I am of the view that I need only be informed of searches conducted by the applicant, in order to be satisfied that the application complies with this condition. It would be unreasonably onerous to expect applicants to have knowledge of, and obtain details about all searches carried out by every other person or body.

At schedule D of the amended application the applicants state “see attached”. Attached to the amended application are copies of four current reserve searches and one current title search from the Queensland Department of Natural Resources dated 22 June 1998. The current reserve searches contain details of the three tenures excluded from the claim and of an expired leasehold tenure. The current title search contains details of the DOGIT granted in favour of the Dauan Island Council.

I am satisfied that these details represent all of the searches carried out by the applicant. There is nothing on the face of any of the documents held by the Tribunal to indicate that the applicant has carried out any other searches.

62(2)(d) Description of native title rights and interests claimed

Reasons relating to this sub-condition

Requirements are met.

An adequate description of native title rights and interests claimed is contained in the original application at A9 as elaborated upon in schedule E of the amended application. I have outlined these rights and interests claimed in my reasons for decision in relation to s.190B(4).

62(2)(e)(i) Factual basis – claim group has, and their predecessors had, and association with the area

Reasons relating to this sub-condition

Requirements are met.

The application outlines the factual basis for the assertion that the native title claim group has and their predecessors had, an association with the area at A5, A9 and A11 of the original application and in the affidavit of (name deleted) at Attachment “F” of the amended application. I have outlined the factual basis as described by the applicants in my reasons for decision in relation to condition 190B5.

I am satisfied that the application sets out a general description of the factual basis on which the asserted native title rights and interests claimed exist. This matter is tested further in relation to s.190B(5).

The application complies with this condition.

62(2)(e)(ii) Factual basis – traditional laws and customs exist that give rise to the claimed native title Reasons relating to this sub-condition

Requirements are met.

The application outlines the factual basis for the assertion that traditional laws and customs exist that give rise to the claimed native title at A5, A9 and A11 of the original application and in the affidavit of (name deleted) at Attachment “ F” of the amended application. I have outlined the factual basis as described by the applicants in my reasons for decision in relation to condition 190B(5).

The application complies with this condition.

62(2)(e)(iii) Factual basis – claim group has continued to hold native title in accordance with traditional laws and customs

Reasons relating to this sub-condition

Requirements are met.

The application outlines the factual basis for the assertion that the native title claim group has continued to hold native title in accordance with traditional laws and customs, at A5, A9 and A11 of the original application and in the affidavit of (name deleted) at attachment “F” of the amended application. I have outlined the factual basis as described by the applicants in my reasons for decision in relation to condition 190B(5).

The application complies with this condition.

62(2)(f) If native title claim group currently carry on any activities in relation to the area claimed, details of those activities

Reasons relating to this sub-condition

Requirements are met.

The application provides general details of activities that the native title claim group carry out in relation to the area claimed at A5, A9 and A11 of the original application, and in the affidavit of (name deleted) at attachment F of the amended application.

I consider that the activities that the group carries out in the claim area are described in general terms. In my view the description of activities is sufficient to comply with the requirements of 62(2)(f). 62(2)(g) Details of any other applications to the High Court, Federal Court or a recognised State/Territory body the applicant is aware of (and where the application seeks a determination of native title or compensation)

Reasons relating to this sub-condition

Requirements are met. It is stated at Schedule H (page 7) of the amended application that there are none, which I interpret as meaning that the applicants are aware of no such applications.

62(2)(h) Details of any S29 Notices (or notices given under a corresponding State/Territory law) in relation to the area, and the applicant is aware of

Reasons relating to this sub-condition

Requirements are met. It is stated at Schedule I that there are none, which I interpret to mean that the applicant is aware of no such notices.

The application complies with this condition.

Reasons for the Decision

The application meets all of the requirements of s 190C(2), for the reasons detailed above.

S190C(3) No previous overlapping claim groups Met

Common claimants in overlapping claims:

190C(3) The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if: (a) The previous application covered the whole or part of the area covered by the current application; and (b) An entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and (c) The entry was made, or not removed, as a result of consideration of the previous application under section 190A.

Reasons for the Decision A search of the Geospatial Database and Register of Native Title Claims on 15th June 1999 reveals that there were no previous applications entered on the Register as a result of a consideration of any such previous applications under s190A where: · the previous application covered the whole or part of the area covered by this application; and · a person included in the native title claim group for this application was a member of the native title claim group for a previous application when this application was made.

S190C(3)(b) requires identification of those claims that were on the Register of Native Title Claims when the current application was made.

As a consequence, 190C(3) have no operation with respect to the application under consideration.

S190C(4) Identity of claimed native title holders Met

Certification and authorisation:

190C(4)(a) The Registrar must be satisfied that either of the following is the case: and (a) the application has been certified under paragraph 202(4)(d) by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or 190C(4)(b) (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

Reasons for the Decision The applicant relies on the second limb of s190C4, namely that there has been compliance with s190C(4)(a) – certification by a representative Aboriginal/Torres Strait Islander body.

An inspection of the NTRB gazetted boundaries establishes that the claim area is wholly within The Torres Strait Regional Authority gazetted area.

Section 190C(4)(a) requires certification by each representative Aboriginal/Torres Strait Islander body that could certify the application. As indicated above there is only one such body, namely The Torres Strait Regional Authority (“TSRA”). The TSRA has certified the application. The relevant certificate is at attachment R of the amended application. It is dated 2 March 1999. It is signed by affixing the Authority’s common seal to the certificate by and in the presence of its duly authorised officer, who has signed across the face of the common seal.

Section 202(7) of the Act sets out the statements to be included in certification of an application for determination of native title. The certificate meets the requirements of s202(7)(a) as it includes a statement to the effect that the TSRA is of the opinion that the requirements of s202(5)(a) and (b) have been met. The certificate states that :

1. “(name deleted) has authority to make the application and deal with matters arising in relation to it, on behalf of all the other persons in the native title claim group; and 2. All reasonable steps have been made to ensure that the application properly describes or otherwise identifies all the other persons in the native title claim group.”

The requirements of s207(b) are also met, as the certificate briefly sets out the TSRA’s reasons for being satisfied that the requirements of paragraph 202(5)(a) and (b) have been met. The basis for the TSRA’s satisfaction is “the clear instructions of the native title claim group which have consistently supported those opinions and most recently having been supported at a meeting on Dauan Island on 27 January, 1999.

The requirements of s202(7)(c) are not applicable as the land/waters covered by the application are not wholly or partly covered by any other native title applications.

To conclude, I am satisfied that application has been certified by the TSRA in accordance with paragraph 202(4)(d) as required by subsection 190C(4) of the Act.