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People of Dauan Island

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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.
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