Editors --- "Passi on behalf of the Meriam People v State of Queensland - Case Summary" [2001] AUIndigLawRpr 35; (2001) 6(3) Australian Indigenous Law Reporter 59

• Passi On Behalf Of The Meriam People V State Of Queensland
• Facts:
• Held:

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Court and Tribunal Decisions - Australia

Passi on behalf of the Meriam People v State of Queensland

Federal Court of Australia (Black J)

14 June 2001

[2001] FCA 697

Native title determination — Native Title Act 1993 (Cth) — consent application — Meriam People — landward high water mark on Waier and Dauar Islands in Torres Strait — meaning of ‘occupy’ (s 47(c) Native Title Act 1993 (Cth))

Facts:

The Dauwereb people, one of eight subgroups of the Meriam people, sought a determination of their native title rights in respect of Waier and Dauar Islands, which together with the island of Mer, comprise the Mer (Murray) Island group in the Torres Strait.

Archeological evidence indicated that the Meriam people occupied these islands at least since the arrival of Europeans and probably for the previous 2500–3000 years. The availability of freshwater has always been a problem and eventually forced Dauar residents to live on Mer and only visit for the purposes of fishing, hunting turtle, collecting turtle eggs and plant material for food and other purposes.

In 1992 the High Court, in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, declared that the Meriam people were entitled to ‘possession, occupation, use and enjoyment of the lands of the Murray Islands’ (at 217) but the islands of Waier and Dauar were excluded from the declaration.

In 1931, a lease was granted over the two islands to establish a sardine factory. The enterprise was unsuccessful. The lease was forfeited in 1938.

The Plaintiff in the case contended that either the lease was wrongly granted or was not inconsistent with the continuing exercise of native title rights. The lease specified that the lessees were not to interfere with the use by the Meriam people of their gardens, land or their fishing operations.

Section 47A of the Native Title Act 1993 (Cth) provides that in certain instances extinguishment is to be disregarded when making a determination of native title if the conditions in s 47A are satisfied. Section 47A(c), contains the condition that the claimants must ‘occupy the area’.

Held:

1. The approach of Beaumont and Doussa JJ in State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316; 5(3) AILR 25, that a ‘broad meaning should be taken of the word “occupy”’ was followed. The facts met the requirements of s 47A and accordingly the court did not need to determine whether or not the grant of the lease for the sardine factory did extinguish or otherwise native title.

2. The differing views expressed in Mabo regarding the effect of the sardine factory lease on the native title interests of the Meriam people were outlined and the court noted that Mabo was decided prior to the enactment of the Act and that s 47A makes it clear that in certain circumstances, such an act is to be disregarded for the purpose of making a determination of native title.

3. The Meriam people, as the traditional owners of the determination area prior to assertion of British sovereignty, are common law title holders.

4. The native title rights and interests applied landward of the high water mark.

5. The native title rights and interests in the determination area include:

a. rights to live on the determination area;
b. to conserve, manage, use and enjoy the area’s natural resources;
c. to maintain, use and manage the area for the peoples benefit;
d. to make decisions about access to, and the use and enjoyment of, the area and its resources.

6. The nature and extent of any other interests includes those recognised under the Torres Strait Treaty (1978) and the laws of the Commonwealth and the State of Queensland.

7. Native title is to be held in trust by the Mer Gedkem Le (Torres Strait Islanders) Corporation for the benefit of the Meriam people.