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[2011] FCA 1432
Federal Court of Australia
2011-12-14
Logan J
Original judgment source is linked above.
THE APPLICATION OF SECTION 87 TO THE CURRENT NATIVE TITLE APPLICATIONS 20 The requirements of s 87 of the Act have been satisfied in the present case. In particular: (a) The period specified in the notice given under s 66 ended on 22 November 2000 in the QUD6208/1998 claim and on 7 May 2002 in the QUD6035/2001 claim (s 87(1)); (b) The parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i)); (c) The parties have recorded their agreement in those short minutes of consent (s 87(1)(b)); (d) An order in terms of or consistent with those short minutes would be within the Court's power because: (i) The Applications are valid and were made in accordance with s 61 of the Act; (ii) The Applications are for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a)); The short minutes comply with s 94A and s 225 of the Act (s 87(1)(c)); and (e) It is appropriate that the Court make the orders sought because: (i) All parties are legally represented; (ii) Searches of land tenure, mining and other relevant interests have been obtained to determine the extent of "other interests" within the proposed determination area and provide copies of those searches to all parties; (iii) The Respondents have provided all parties with a list their interests in the land which affect native title; (iv) The parties have agreed the nature and extent of interests in relation to the determination area and those interests are described in orders 9 and 10 of QUD6208/1998 application and order 9 of QUD 6035/2001 application and in Schedule 3 to each of the determinations; (v) There are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the Application which would otherwise require orders to be made under s 67(1) of the Act (s 87(1) and s 87(2)); (vi) The State of Queensland has played an active role in negotiating the consent determination. In participating in these negotiations, the State of Queensland, acting on behalf of the general community, having had regard to the Act's requirements and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances. 21 The State's assessment process has included the assessment of extensive material showing the connection of the claim group with the country the subject of the determination. That material included anthropological reports provided by Averill Ginn, Ray Wood and Dr John Burton who were engaged by the applicant and which addressed the native title assessment requirements of the State of Queensland's Department of Environment and Resource Management. Ultimately, the parties reached agreement that the native title claim group named in Schedule 2 of the determinations and in the connection material are the persons who hold the claimed native title rights and interests in the determination area. As noted above, that primary material has been filed. In my view, it justifies the approach taken by the State and the other respondent parties. 22 Under s 55 of the Act, the Court is required, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by ss 56 and 57 of the Act. They respectively relate to holding the native title on trust and with the non-trust function of prescribed bodies corporate. The proposed determination provides that the native title is not to be held on trust. It provides for an Aboriginal corporation, the Muluridji Tribal Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. As that body corporate was registered on 5 July 2011 it will also perform the functions mentioned in s 57(3) of the Act. 23 The Court notes that the body corporate has filed a Notice of Nomination and Consent of the Prescribed Body Corporate on 1 December 2011 which satisfies the requirements of s 57(2) of the Act. 24 Finally, it is worth recording that agreements of the kind that have brought about today's hearing and determination do not just happen. They involve co-operation by all of the parties in the administration of justice, careful attention by them and their advisers to the requirements of the Act in relation to the proof of native title, related effort in the gathering of relevant evidence and the ready making of concessions as to whether on the evidence native title can be proved. They also involve the regular review by the Court at regional directions hearings, and in the intervals in between by the Court's registrar's, to ensure that an application is both prosecuted with due diligence by an applicant and not unreasonably delayed by a respondent in its progress towards a hearing like today or, if needs be, a contested hearing. Ensuring that is important in any litigation but is especially so in a proceeding under the Act which serves a wider public interest recognised in the preamble and which, through the allocation of judicial and other court resources and via the provision of various forms of legal aid, involves a considerable investment of public money. The parties and their advisers are to be commended for the consensual resolution of this native title proceeding. 25 For the reasons given, the Determination is now made. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.
Baker on behalf of the Muluridji People
State of Queensland
REASONS FOR JUDGMENT 1 The applications that are the subject of these proceedings are for the determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the land described in Schedule 1 to the proposed determinations. 2 The applications are being heard together as they are geographically proximate and entail consideration of materially the same anthropological evidence concerning the Muluridji People. They encompass land in the Tablelands Region of Far North Queensland within the Counties of Dagmar, Nares and Hodgkinson. Substantial parts of those applications also lie within the town of Mareeba, approximately 60 kilometres west of the city of Cairns. 3 One of the objectives of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in the amendments to s 87 of the Act by the Native Title Amendment Act 2009 (Cth). 4 The properties over which the proposed consent determination will be granted are described in more detail in the maps in Schedule 1 to the determinations. 5 In King v Northern Territory of Australia [2011] FCA 582 (King) Mansfield J made a number of observations about the preamble to the Act and s 87 of the Act. It is an agreement reached between the parties for the purposes of that section that is the occasion for the hearing today. I am in complete agreement not only with the substance of his Honour's observations in King but also with the manner in which he expressed them. They are exactly apposite in the present case. I propose therefore to adopt them as my own in these reasons for judgment without further attribution. Because it governs the content of a native title determination, I shall also make reference to s 94A of the Act which, in turn, directs attention to the matters set out in s 225. 6 The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications have always been the traditional owners of the land. By the Court's orders, the Australian community collectively recognises that status. It is important to emphasise that the Court's orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement. 7 The applicant has filed the following documents in each of the proceedings (QUD6208/1998 and QUD6035/2001): (a) Averill Ginn, Ray Wood, Muluridji Native Title Determination Application Connection Report, February 2005, Edited by Michael Southon ("Connection Report") and filed on 2 December 2011; (b) Dr John Burton, Muluridji Native Title Application Supplementary Report, 31 December 2008 ("Supplementary Report") and filed on 2 December 2011; (c) Dr John Burton, Native Title Determination Applications Muluridji People (QUD6208/98) AND Muluridji People #2 (QUD6035/01)-Summary of Connection Material, 31 January 2011 ("Executive Summary") and filed on 2 December 2011; (d) Affidavit of Mr Mervyn Riley sworn on 25 May 2011 and filed on 2 December 2011; (e) Affidavit of Mrs Valma Green sworn on 25 May 2011 and filed on 2 December 2011; (f) Proposed Orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 30 November 2011; (g) Submissions satisfying s 57 of the Act, filed on 30 November 2011; (h) Outline of submissions in Support of the Proposed Consent Determination, filed on 1 December 2011; and (i) Notice of Nomination and Consent of the Prescribed Body Corporate filed on 1 December 2011.
SECTION 87 OF THE ACT 8 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where: (a) The period specified in the notice given under s 66 of the Act has ended (s 87(1)); (b) There is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i)); (c) The terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b))); (d) The Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and (e) The Court considers that it would be appropriate to make the order sought (ss 87(1) and (2)). 9 The focus of the Court in considering whether the orders sought are appropriate under ss 87(1) and (2) is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J stated: [36] The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. [37] In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. 10 As such, the Court is not required to make its own inquiry of the merits of the applicant's claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. The Court may consider such evidence to determine whether the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [29]-[30]. 11 In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated: State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land.
(2002) 214 CLR 422
(2001) 115 FCR 109
(2000) 104 FCR 494
(2002) 117 FCR 6