Aplin on behalf of the Waanyi Peoples v State of Queensland

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6022 of 1999

BETWEEN: DAWN APLIN, MALCOLM GEORGE, EUNICE O'KEEFE, FRED O'KEEFE AND ADA WALDEN ON BEHALF OF THE WAANYI PEOPLES

MMG CENTURY LIMITED (FORMERLY OZ MINERALS CENTURY LIMITED)

BEZUMA PASTORAL CO PTY LTD, GAMBAMORA INDUSTRIES PTY LTD, LINDSAY WRAY MILLER, VENLOCK PTY LTD, ALAN JAMES WEBBER, PARAWAY PASTORAL COMPANY LIMITED

JUDGE: DOWSETT J DATE: 9 DECEMBER 2010 PLACE: CENTURY ZINC MINE

REASONS FOR JUDGMENT 1 Malcolm George, Fred O'Keefe, Ada Walden, Eunice O'Keefe and Dawn Aplin on their own behalves and on behalf of other Waanyi People, have applied pursuant to the Native Title Act 1993 (Cth) (the "Act") for a determination that native title exists over certain land and waters comprising the areas identified in the application. The claim area covers some 17,900 square kilometres of land and waters in the southern Gulf of Carpentaria and includes pastoral lease land, camping and water reserves, resource reserves and Boodjamulla (Lawn Hill) National Park. The application originally included the adjacent Waanyi/Garawa Aboriginal Land Trust lands on the Nicholson River in the Northern Territory, but that area has been excised from this claim. 2 The current application was filed on 30 August 1999. The application was accepted for registration on 5 September 1999 and was notified in accordance with s 66(3) of the Act on 15 November 2000. On 23 July 2010, the application was amended in various ways. In particular, the Northern Territory portion of the claim was excluded, the description of the native title rights and interests was amended as was the general description of the factual basis of the claim. The parties who remain as respondents are the State of Queensland, the Mount Isa City Council, the Burke Shire Council, Ergon Energy, Telstra Corporation, MMG Century Limited, Mount Isa Mines Limited, Carpentaria Land Council Aboriginal Corporation, Gregory Phillips, Bezuma Pastoral Company Pty Ltd, Gambamora Industries Pty Ltd, Lindsay Wray Miller, Paraway Pastoral Company Limited, Venlock Pty Ltd and Alan James Webber. 3 The parties, save for Mr Phillips, an indigenous respondent, have agreed upon the terms of a proposed determination. That signed agreement, attaching a statement of agreed facts and contention, was filed on 8 November 2010. Mr Phillips has admitted the facts pleaded by the applicant in the statement of claim except for those pertaining to the description of the native title claim group. I considered the traditional laws and customs of the Waanyi people concerning that question in a separate hearing and made declarations which are binding on the parties. As a result there are no outstanding factual disputes as between Mr Phillips and any of the other parties. 4 Pursuant to s 13 and Parts 3 and 4 of the Act, the Court may make determinations concerning native title in relation to areas over which there is no existing approved determination. The determination area is not subject to any other claim or determination by the Court. 5 I have read the submissions filed by the applicant and the State in support of the proposed determination. I have read the submissions filed by Mr Phillips. He submits that the Court cannot be satisfied that the claim group as described holds native title over the subject land. With all respect to Mr Phillips, his continued opposition to a determination is based upon his refusal to accept my decision following the earlier hearing which effectively disposed of this question. Mr Phillips' claim to membership of the claim group is based upon his assertion that he is descended from a woman called Minnie who, he alleges, was a Waanyi woman from whom Waanyi people may be descended. I held that it is for the Waanyi people to decide whether they accept Minnie's descendants as being Waanyi. Mr Phillips has not signed the agreement, and so the Court cannot determine the matter pursuant to s 87 of the Act. However his opposition cannot prevent the Court from determining the matter on the undisputed evidence, admissions, including Mr Phillips' admissions and my findings. 6 The Court's overarching responsibility is to hear and determine the matter in accordance with law, including the Act and the rules of procedural fairness. Courts resolve matters which are in dispute between parties. The ambit of those disputes is identified by the parties, and only disputes so identified fall for resolution by the Court. When parties make admissions or concessions, the issues for determination are narrowed. Nonetheless, the Court may decline to act on an admission in some circumstances. When, as here, the proceedings have significance for people other than the parties, the Court must give especial consideration to the appropriateness of making consent orders. In the present case, I see no reason to depart from the parties' identification of the issues and their consensual resolution. They have had the benefit of appropriate legal advice. The proceedings have been on foot for a long time and have been appropriately publicized. I keep in mind the substantial public interest in matters of this kind. Nonetheless I see no reason to doubt that the proposed orders have been drafted with appropriate regard for the public interest. The State and the various local authorities are well placed to protect that interest. 7 The agreement reached by the parties (other than Mr Phillips) recognizes exclusive rights to possess, occupy, use and enjoy the area described in Schedule 1, other than in relation to the use and enjoyment of water. This area is Bidunggu at Gregory Downs, a former Aboriginal reserve which was alienated by Deed of Grant dated 11 August 1994. The consenting parties have agreed that at the time the application was made, one or more members of the claim group occupied the Bidunggu reserve in accordance with s 47A(1)(c) of the Act. Thus, any prior extinguishment contemplated by s 47A of the Act must be disregarded. 8 The proposed orders seek recognition of non-exclusive native title rights (other than in relation to the use and enjoyment of water) over the balance of the determination area as described in Schedule 2. Those rights are: (a) to access, to be present on and to traverse the area; (b) to hunt, fish and gather on the area for personal, domestic and non-commercial communal purposes; (c) to take and use Natural Resources from the area for personal, domestic and non-commercial communal purposes; (d) to camp on the area, but not to reside permanently or to erect permanent structures or fixtures; (e) to light fires on the area for domestic purposes including cooking and heating, but not for the purposes of hunting or clearing vegetation; (f) to conduct religious, spiritual and ceremonial activities on the area; (g) to be buried on, and bury Native Title Holders on, the area; (h) to maintain, in the area, places and areas of importance or significance to the Native Title Holders under their traditional laws and customs and to protect those places and areas, by lawful means, from physical harm; and (i) to share or exchange Natural Resources from the area for personal, domestic and non-commercial communal purposes. 9 Where the Court makes a determination of native title, s 94A of the Act requires that it set out details of the matters mentioned in s 225. That section provides that: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 10 The findings I make in relation to the elements of s 225 are supported by the extensive material filed in this matter and evidence I have previously received from senior members of the claim group and from anthropologists, Professor David Trigger, Dr David Martin and Mr Peter Blackwood in determining the separate question relating to the description of the claim group. 11 The applicant has filed an expert report by Professor Trigger dated 9 June 2009, together with a report and accompanying genealogies co-authored by Professor Trigger and Ms Pauline Fietz. I have also been greatly assisted by the site map tendered as an exhibit on the hearing of the separate question. I particularly acknowledge Professor Trigger's contribution. He has worked as an anthropologist with the Aboriginal people of the lower Gulf of Carpentaria since 1978. 12 The material provides an overview of the anthropology, archaeology and history of the Waanyi People. Professor Trigger says: "Waanyi" is an Aboriginal language of the southern Gulf of Carpentaria region. The existence, name and territorial location of the language has been well documented by ethnographers since the coming of European and Asian people to the region. I believe that it may be safely inferred from the earliest ethnographic accounts that at the time that the British Imperial Crown asserted sovereignty in relation to the relevant parts of the Australian continent (being, I understand, in 1788), there was a group of Aboriginal people in the southern Gulf of Carpentaria region who had in common that they spoke the Waanyi language and acknowledged and observed a common body of laws and customs, and by those laws and customs had connection with, and rights and interests in relation to country, including country within the present claim area and also beyond that claim area in the Northern Territory. 13 The first recorded European expedition into the mainland areas of the southern Gulf of Carpentaria was in 1841 when Stokes, in the Beagle, sailed up the Albert River to the present location of Burketown. He travelled 40 miles upstream and then continued on foot. He was so impressed with the soil and vegetation of the area that he called it "the Plains of Promise". Overland explorers included Ludwig Leichhardt in 1845, Augustus Gregory in 1856 and Burke and Wills in 1861. In the following year, Norman, Landsborough and McKinley travelled through the region in search of Burke and Wills. In 1862, Landsborough wrote: The [Gregory] River is here a quarter of a mile wide, running strong in two channels ….. it is the finest and grandest looking inland river I have seen in Australia, and the country it runs through consists of rich-soiled plains, just sufficiently wooded for pastoral purposes. 14 The first pastoral runs were established at Beames Brook on the Gregory River and further east on the Leichhardt in 1864. Frank Hann established Lawn Hill in 1875 and Gregory Downs, Riversleigh and Lilydale were established later in that decade. The arrival of European settlers brought great hardship to indigenous people in the area, including the Waanyi. Conflict between settlers and traditional owners led to the dispersal or destruction of the Nguburindi people, whose land was to the east of traditional Waanyi country, and of the Injilanji people, whose land was to the south. The Waanyi people succeeded them as traditional owners of those areas or parts thereof. Waanyi people are now largely concentrated in communities situated in Doomadgee, Mornington Island, Burketown, Robinson River, Borroloola, Camooweal and Mt Isa. However they have maintained close contact with the determination area. 15 Chapter 1 of the connection report gives a comprehensive overview of Waanyi society at first contact with European explorers and settlers and the impact of that contact on the lives of the people. Reference is made to the "wild times" when there were "violent reprisals for killing cattle and competition over land and water, as well as the emergent need for pastoral labour". Problems were unhesitatingly resolved by the use of violence. I have read the affidavit of Mary Lorraine, filed on 5 November 2010. Ms Lorraine speaks about her father's first contact with Europeans and the impact of the "wild times" on Waanyi people. The affidavit provides an important insight into the way in which Waanyi people have lived on, and maintained their connection to their country. 16 The reports and the affidavits clearly demonstrate the existence of organized Aboriginal occupation and possession of the determination area. They demonstrate that the Waanyi people maintained an unbroken physical connection with their land during the period of early European settlement and that such connection has continued to the present day. It has involved their living in bush camps, working on the large pastoral properties, observing traditional laws and practices and utilising the resources of the country. 17 Professor Trigger demonstrates, in chapter 6 of the connection report, that traditional laws and customs affiliate particular families to areas within the determination area. Such laws and customs are derived from traditional beliefs about creation and the importance of the acknowledgement and observance of those laws and customs. Evidence of such observance is provided in the connection report. 18 I conclude that the Waanyi people are descended from a society of Aboriginal people who occupied the determination area continuously prior to sovereignty and thereafter. Such society was united by the acknowledgement and observance of traditional laws and customs. I am satisfied that the rights and interests which I recognize today are derived from the continuous observance of these laws and customs. Those conclusions are supported by the anthropological material.

ORDERS AND DETERMINATION 19 It is necessary to return to s 225 of the Act. Section 94A requires that the matters mentioned in s 225 be set out in the orders. I am satisfied that the proposed orders deal with those matters. 20 The orders, which are consistent with the terms agreed by the consenting parties, recognize that the Waanyi People, as the common law holders of the native title in the determination area, are entitled to the use and enjoyment of the land and waters in accordance with their traditional laws and customs. The orders recognize, at Schedule 6, other interests in the determination area and the relationships of those interests to the native title interests. 21 Section 55 of the Act requires the Court to make a determination pursuant to either s 56 or s 57 of the Act. Order 14 of the proposed orders provides that native title is not to be held in trust. By proposed order 15, the Waanyi Native Title Aboriginal Corporation (ICN7448) is to be the prescribed body corporate for the purposes of s 57(2) of the Act and is to perform the functions set out in s 57(3) after becoming the registered native title body corporate. The applicant has nominated that corporation as the prescribed body corporate to perform the functions set out in the Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) and for the other objects and purposes set out in its rules. The corporation was registered on 16 September 2010. The applicant has filed all relevant material, including specific submissions setting out the steps taken by the applicant group to satisfy the requirements of s 57 of the Act. 22 For the above reasons, I conclude that it is appropriate to make the orders sought by the parties to give effect to their agreement. The orders give recognition and protection within the Australian legal system to those rights and interests. The Waanyi people first sought such recognition in the High Court in 1996 and have prosecuted their claim in this Court since 1998. 23 I have not come here today to give anything to the Waanyi people. The orders which I am about to make give them nothing. Rather, I come on behalf of all Australian people to recognize the existing rights and interests of the Waanyi people which have their roots in times before 1788. Only some of those rights and interests have survived European settlement. Those surviving rights we now acknowledge in a way which is binding on all people and for all time. 24 I congratulate the Waanyi people upon their achievements today. I do so on behalf of all Australian people, but particularly on behalf of the Judges of this Court and our staff. We know that the years since first European settlement have not been kind to you and to those who have gone before you. There has been much sadness for which the belated recognition of ancient rights offers little compensation. Nonetheless we hope that with this step today, you will have a firm basis for a brighter future in which we hope to help rather than hinder, and in which we hope to share. 25 In conclusion, I again congratulate the Waanyi people upon their achievements and wish them well for the future. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.