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Reid, Georgina; Waia, Terry --- "Public Works Threaten Native Title in Torres Strait" [2003] IndigLawB 50; (2003) 5(26) Indigenous Law Bulletin 24


Public Works Threaten Native Title in Torres Strait

by Terry Waia and Georgina Reid

Background

This year Australia celebrated the eleventh anniversary of the Mabo[1] decision. This decision remains of considerable importance to the people of Torres Strait as it marks the formal recognition under Australian law of their traditional land ownership rights. Despite this, eleven years on, Torres Strait Islanders are still in court fighting the government for recognition of their native title rights[2].

Following the Mabo decision, and the introduction of the Native Title Act in 1993, there have been 10 successful determinations of native title in the Torres Strait. All of these were achieved through consent between the parties, rather than dispute in a court.[3]

In September 2002, seven further claims in the Torres Strait were set down for determination by consent, after years of negotiations between the State and other parties. However, just weeks before the determinations were due to take place they were cancelled because the State government, in a significant change of position, advised that they required the determinations to contain a statement of extinguishment over land where public works have been built.

Most of the community islands in the Torres Strait are held under Deed of Grant in Trust (‘DOGIT’). These were granted in 1985, and gave to an Island Community Council (‘Island Council’) a freehold title in the land, on trust for the benefit of the Islander inhabitants. As well as being the holder of the DOGIT, the Island Council also has local government responsibility and other important functions under the Community Services (Torres Strait) Act 1994 (Qld). These functions must be exercised for the benefit of the beneficiaries of the trust. The Island Councils are responsible for providing community housing and related infrastructure, such as sewerage and water. They also provide other facilities for the benefit of the community, such as public halls, Council offices, CDEP workshops, etc. It is these things that make up most of the public works now in dispute with the State government.

The arguments

Many of the hopes that Indigenous people held following the High Court decision in the Mabo Case have been eroded over the last 11 years, with the enactment and amendment of the Native Title Act 1993 (Cth) (‘NTA’) and the handing down of a number of key decisions by the High Court.

The 1998 amendments to the NTA were largely designed to give certainty to third parties at the expense of the rights of Indigenous Australians. However, several ‘beneficial’ provisions were inserted into the NTA at this time. One such provision was s47A, which allows for the disregarding of the extinguishing effect of certain acts where land is held by, or for the benefit of Aboriginal or Torres Strait Islanders. Unfortunately, even these beneficial provisions are now being read down and narrowly applied by State governments, who seem determined to limit and deny recognition of native title.

There is no dispute that to the extent the grant of the DOGITs in 1985 may have extinguished native title in the land, such extinguishment can be disregarded pursuant to s47A(2)(a) of the NTA. However, seven consent determinations which were listed for hearing in September 2002 did not proceed because the Queensland government sought to argue that public works constructed on that land have an extinguishing effect.

To put this legal dispute into context, there have now been seven consent determinations in the Torres Strait which took place after the NTA was amended in 1998 over DOGIT land on which public works have been constructed.[4] No previous determination of native title over a DOGIT community in the Torres Strait has either excluded all lands on which public works are situated from the determination area, or contained a declaration of extinguishment over such land.

Nevertheless, this time around the State government required all land on which a ‘public work’ has been constructed to be excluded from the determination area. This raised a number of issues for the native title claimants, not least of which was why these determinations should be any different from those that had gone before. As in previous determinations, the claimants were relying on s47A to overcome any extinguishment which may have occurred as a result of the valid construction of public works on DOGIT land.

The definition of ‘public works’ under the NTA is extremely broad, and includes:

a building, or other structure (including a memorial), that is a fixture ... a well, or bore, for obtaining water; or any major earthworks ... that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities.

As explained above, almost all of the infrastructure on the community islands, including housing, has been built by or on behalf of the Island Councils. It was conceded by the Claimants that the Island Councils are statutory authorities of the Crown for the purpose of the definition of public works.

Whilst the State initially sought a generic exclusion of all land on which public works were or are situated from the determination area, the Judge considered it to be inappropriate to make a determination which would take effect in rem[5] to be made in such general terms as to render the actual area covered by the determination uncertain. Accordingly, His Honour made orders which would have required the State to prepare a schedule identifying all areas which they sought to have excluded from the determination area within 12 months from the determination date. As a result of these orders, the State withdrew its consent to the terms of the determinations, and required instead a declaration of extinguishment over lands on which public works were or are situated.

As the claimants would not accept extinguishment over lands where they continue to live and exercise their traditional rights, this put the operation of s47A of the NTA squarely in question. The parties were unable to resolve the issue by agreement and referred it to the Federal Court to resolve it as a question of law.[6]

The separate questions concerned, respectively:

1. the extinguishing effect, if any, of the construction or establishment of certain public works on DOGIT lands, at various time periods, upon such native title rights and interests as may otherwise exist in relation to the land; and

2. the application, if any, of s47A to require any extinguishment which may have occurred to be disregarded for the purpose of a determination of native title.

In relation to the first question, some of the matters argued before the court included:

In the event that public works constructed on DOGIT lands, either pre or post December 1996, were found by the Court to have an extinguishing effect on native title, the Court was asked to consider the operation of s47A.

One of the key matters canvassed by the State in relation to the operation of this section was whether the construction or establishment of a public work is ‘the creation of any other prior interest in relation to the area’ for the purpose of s47A(2)(b) of the NTA. The State argued that the term ‘prior interest’ should be read down so as to include only those interests which have been created by a ‘grant or vesting’,[7] thereby excluding from the application of s47A(2) the extinguishing effect of the construction or establishment of a public work.

A further issue canvassed in relation to the operation of s47A was the temporal application of the section. Section 47A(2)(b) refers to ‘prior’ interests. This could mean either prior to the making of the claimant application referred to in s47A(1), or prior to the making of a native title determination. Either interpretation has some difficulties. If ‘prior interests’ include only those interests created prior to the making of the application, the applicants may well need to make a new application immediately prior to the making of a determination to cover any extinguishing acts that may have occurred subsequent to the making of the application. On the other hand, if ‘prior’ means any time prior to the date of the determination, that may leave open the possible consequence of undoing the effect of a compulsory acquisition.

This matter was heard by the Full Federal Court on 15 May 2003. The people of the Torres Strait are still awaiting the Court’s judgment. It is certain that the decision of the Full Federal Court will have significant implications for the Torres Strait including, potentially, for those Islands which have already had a determination of native title. Furthermore, the interest of other States in the proceedings, and in particular the successful application to intervene by the Northern Territory government, leaves little doubt that the decision will also impact on a number of claims across Australia which are made over ‘Indigenous’ land or vacant crown land.

Terry Waia is the Chairperson of the Torres Strait Regional Authority, and of the Saibai Island Council. He is also a traditional land owner and native title holder of Saibai Island. Georgina Reid is the Principal Legal Officer of the Native Title Office, Torres Strait Regional Authority.


[1] Mabo & Ors v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1

[2] Erubam Le (Darnley Islanders) #1 v State of Queensland No Q41 of 2003

[3] Saibai People v State of Queensland [1999] FCA 158; Mualgal People v State of Queensland [1999] FCA 157; Dauan People v State of Queensland [2000] FCA 1064; Mabuiag People v State of Queensland [2000] FCA 1065; Poruma People v State of Queensland [2000] FCA 1066; Warraber People v State of Queensland [2000] FCA 1066; Masig People v State of Queensland [2000] FCA 1067; Damuth People v State of Queensland [2000] FCA 1067; Andrew Passi (on behalf of the Meriam People) v State of Queensland [2001] FCA 697; Kaurareg People v State of Queensland [2001] FCA 657 (incorporating five separate matters).

[4] Saibai People v State of Queensland [1999] FCA 158; Mualgal People v State of Queensland [1999] FCA 157; Dauan People v State of Queensland [2000] FCA 1064; Mabuiag People v State of Queensland [2000] FCA 1065; Poruma People v State of Queensland [2000] FCA 1066; Warraber People v State of Queensland [2000] FCA 1066; Masig People v State of Queensland [2000] FCA 1067

[5] A decision in rem means that it is enforceable against the world and not just against the parties to the case.

[6] pursuant to Order 29 Rule 2 of the Federal Court Rules

[7] For example the granting of earlier leases or licences over the land


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