Brady on behalf of the Western Yalanji People #4 v State of Queensland

Federal Court of Australia|2013-09-24|Before: Logan J

THE APPLICATION OF SECTION 87 to the Western Yalanji people claims 28 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 30 January 2002 for QUD6008/99, 1 August 2001 for QUD6003/01 and 28 September 2005 for QUD3/05 (s 87(1)); (b) The parties have reached agreement as to the terms of determinations of native title (s 87(1)(a)(i)); (c) The parties have recorded their agreement in short minutes of consent (s 87(1)(b)); (d) An order in terms of or consistent with the short minutes of consent would be within the Court's power (s 87(1)(c)) because: (i) The Applications are valid and were made in accordance with s 61 of the Act; and (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 complies 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) It is consistent with objects in the Act that issues and disputes concerning native title are resolved by mediation; (iii) The State of Queensland has taken a real interest 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; (iv) The connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determinations; (v) The requirements of ss 56, 94A and 225 of the Act are satisfied; and (vi) The proposed determinations are unambiguous and certain as to the rights declared.

satisfying section 57 of the act 29 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 s 56 and s 57 of the Act. They respectively relate to holding the native title on trust or otherwise and if not held on trust, the non-trust functions of the prescribed body corporate. 30 As to the proposed determinations, Mr Bell has deposed in his affidavit affirmed and filed on 23 August 2013, the native title is not to be held on trust. It provides for an Aboriginal corporation, the Western Yalanji Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. The Western Yalanji Aboriginal Corporation was registered on 30 December 2008 pursuant to the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth). It will perform the functions mentioned in s 57(3) of the Act. 31 The Court notes that Mr Bell has further filed on 23 August 2013 a Notice of Nomination and Consent of the Prescribed Body Corporate, which satisfies the requirements of s 57(2) of the Act. 32 The Western Yalanji Aboriginal Corporation satisfies the requirements of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) because: (a) it is an Aboriginal and Torres Strait Islander Corporation: reg 4(1)); (b) its purpose, as set out in its Rules of the Corporation, satisfy reg 4(2)(b); (c) the eligibility requirements of the Rules of the Corporation operate to ensure that all members of the corporation at the time of the determination are included or proposed to be included in the determinations as persons who have native title rights and interests in relation to the determination area: reg 4(2)(b). 33 Finally, and at the risk of repetition, it needs to be understood that agreements of the kind that have brought about today's hearing and determinations 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 registrars, 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. 34 For the reasons given, the Determinations are now made. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Corporations (Aboriginal and Torres Strait Islanders) Act 2006(Cth)

Native Title Amendment Act 2009(Cth)

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Land Protection (Pest and Stock Route Management) Act 2002(Qld)

(Queensland) Act 1993(Qld)

Native Title Act 1993(Cth)ss 13, 55, 56, 57, 61, 66, 87, 94A, 223, 225

REASONS FOR JUDGMENT 1 The applications that are the subject of these proceedings, QUD 6008 of 1999, "Western Yalanji People #4"; and combined claim QUD 6003 of 2001, "Western Yalanji People #5" and QUD 3 of 2005, "Western Yalanji People # 7", 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 State of Queensland, Tablelands Regional Council, Cook Shire Council and various pastoralists are parties to the applications, and Telstra Corporation Limited and a miner are respondents to the Western Yalanji People #4 application. 3 The applications are being heard together as they are geographically proximate and entail consideration of materially the same anthropological evidence concerning the Western Yalanji People. The applicants seek a determination of native title on behalf of the Western Yalanji People over various lands and waters in and around the Palmer and Mitchell River systems which lie to the north-west of Mt Carbine and to the south of Laura. 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 in each application. 5 One of the Commonwealth Parliament's objectives in respect of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in s 87 of the Act by the Native Title Amendment Act 2009 (Cth). 6 Like many such claims, this claim has been long in its gestation. I made observations last year in Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800 and Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 that native title claims which linger unresolved on a court list are an affront to our system of justice. I related in those cases how Parliament's objective of consensual resolutions had been met. The statements which I then made are just as applicable to this case. The achievement of Parliament's objective would not have been possible without much hard and dedicated work by experienced legal advisers, the responsible actions of the parties guided by their advisers and, especially latterly, intensive case management, particularly by the Court's registrars. I commend the parties and the legal practitioners involved in cases being heard today for the work latterly undertaken in bringing them to final, consensual resolution. 7 In the aftermath of Wik Peoples v Queensland (1996) 187 CLR 1, the Executive Government of the Commonwealth made provision for legal assistance to be provided to pastoralists in relation to native title claims. Over the time during which I have been responsible for the management of the list of native title cases in this region, and as I have stated in other determinations, I have directly observed how, in combination with responsible legal representation of applicants, via the North Queensland Land Council, of the State, via the Crown Solicitor and of other respondents, this legal assistance to pastoralists has repeatedly and beneficially contributed to the administration of justice and thus to Parliament's goal of national reconciliation in this important area of the Court's jurisdiction. This legal assistance to pastoralists was terminated with effect at the end of 2012 by the then Commonwealth Executive Government. Such value judgments are for the Executive Government of the day to make. What I can say again, and have in earlier determinations stated, based on direct experience, is that the addressing of the hitherto "unacceptably long time" for the resolution of native title cases and the recent experience of "faster and better claim resolution" to which the then Attorney General made reference (Echoes of Mabo: AIATSIS Native Title Conference, 6 June 2012, Speech by the Honourable Nicola Roxon MP, Attorney-General, 20Quarter/6-June-2012---Echoes-of-Mabo---AIATSIS-Native-Title-Conference.aspx Accessed 7 December 2012) is best achieved by a combination of responsible legal representation of all interested parties and intensive case management and proactive, targeted use of alternative dispute resolution where appropriate by the judges and registrars of this Court. As I noted this year in Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 at [4]: [T]o my direct observation in court in respect of the regions of the State for which I have had case management responsibility, the collective representation of pastoral respondents enabled by that scheme greatly facilitated the responsible, consensual resolution of native title claims and removed much of the angst such claims might otherwise have occasioned such respondents. 8 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made in King v Northern Territory of Australia [2011] FCA 582 (King) per Mansfield J. His Honour made a number of observations about the preamble to the Act. 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 proceedings also. As I observed in Muluridji, I propose therefore to adopt them as my own in these reasons for judgment without further attribution. 9 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. 10 The applicants have filed the following documents relevant to the consent determinations in Western Yalanji #4, #5 and #7: (a) Affidavit of Mr Gregory Bell affirmed on 19 August 2013 and filed on 21 August 2013, exhibiting: (i) Affidavit of Mr Eric Rosendale affirmed 17 May 2013; (ii) Dr Anthony Redmond, 'Summary of Connection Materials Provided for Western Yalanji Native Title Claims QDC89/89, QC99/3, QC01/39, 30 September 2011; (iii) Affidavit of Mr Qawanji Ngurrka Jawiyabba (Vincent John Brady) sworn 18 May 2011; (iv) Dr Anthony Redmond, 'Final Response to State of Queensland Regarding the Level of Society Relevant to the Laws and Customs of the Western Yalanji People', 10 August 2010; (v) Dr Anthony Redmond, 'The Relationship of the Wider Cultural Bloc and Regional Society to Language Identity Groups in the Western Yalanji Native Title Claim Region', 3 December 2008; (vi) Dr Anthony Redmond, 'Supplementary Anthropological Report: The Native Title Rights and Interests of Western Yalanji People', February 2008; (vii) Mr Raymond Wood, 'Western Yalanji Customary Land Interests', February 2006; (viii) Mr Raymond Wood, 'Overview of Aboriginal Customary Land Holding in the "Maytown Country"', April 1998; (ix) Mr John Ford, 'Anthropological Evidence in Support of Western or 'Sunset' Yalanji People's Claim for Native Title (QC 95/10) Determination over Their Country', August 1995; and (x) Dr Bruno David and Ms Zoe Ellerman, 'Summary of Historical and Archaeological Evidence in Support of the Kuku Yalanji Response to the Non-claimant Application for Determination on Native Title for Lands Southeast of Maytown (Ref QC 94/18)', April 1995. (b) Affidavit of Mr Gregory Bell affirmed and filed on 23 August 2013, exhibiting: (i) Dr Louise Allwood, 'Western Yalanji Claim Group Description Report', 28 March 2013. (c) Affidavit of Mr Gregory Bell affirmed and filed on 23 August 2013, exhibiting: (i) Certificate of Incorporation for the Western Yalanji Aboriginal Corporation (RNTBC); (ii) Western Yalanji Aboriginal Corporation's Rules approved by the Registrar and dated 30 June 2009; (iii) Western Yalanji Aboriginal Corporation membership list; (iv) Schedule 2 from the Western Yalanji consent determination, Riley v Queensland [2006] FCA 72; and (v) Meeting notice published in the Cairns Post on 13 April 2013. (d) Notice of Nomination and Consent of the Prescribed Body Corporate filed on 23 August 2013; (e) Submissions satisfying s 57 of the Act filed on 27 August 2013; (f) Outline of Submissions in support of consent determinations filed on 26 August 2013; (g) Agreement under s 87 of the Act and draft consent determination orders filed by the State of Queensland on 26 August 2013 (QUD6008/99); (h) Agreement under s 87 of the Act and draft consent determination orders filed by the State of Queensland on 26 August 2013 (QUD6003/01); (i) Affidavit of Mr Gregory Bell affirmed and filed on 29 August 2013, exhibiting: (i) Revised Outline of Submissions in support of consent determinations filed on 26 August 2013.

SECTION 87 OF THE ACT 11 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) Having satisfied the criteria relevantly detailed, the Court considers the making of orders as it appears to the Court to be appropriate to do so pursuant to s 87(1A) of the Act. The Court may make a determination in accordance with s 87(2), as is relevant to these proceedings. 12 The focus of the Court in considering whether the orders sought are appropriate under s 87(1) and s 87(2) is on the making of the agreement by the parties. In Muluridji I cited observations of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474. Such remarks are apt to be adopted in this case. His Honour 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. 13 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 Queensland (2001) 115 FCR 109 at [29]-[30]. 14 In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated: [38] … 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 careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

SECTION 94A OF THE ACT 15 Section 94A of the Act requires that a native title determination order must satisfy the requirements of s 225 of the Act. Section 225 provides: 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. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. [emphasis in original] 16 Section 223(1) of the Act defines 'native title' and 'native title rights and interests' as: (1) … the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 17 In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ (with McHugh J agreeing) stated the relevant principles with respect to s 223 of the Act, at [46] to [55] and [80] to [83]: (a) A traditional law or custom which is the source of native title rights and interests is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. (b) The origins of the law or custom from which native title rights and interests stem must be found in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of sovereignty by the British Crown - it is only those rules that are "traditional" laws and customs. (c) That normative system must have a continuous existence and vitality since sovereignty. (d) If that society ceases to exist as a group which acknowledges and observes those pre-sovereignty laws and customs, those laws and customs cease to have continued existence and vitality. (e) Only native title rights or interests that existed at the time of the change in sovereignty will be recognised. However, some change to, or adaptation of, traditional laws or customs or some interruption in the enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. (f) In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional laws and customs at times earlier than those described in the evidence. 18 Further, there is authority of this Court, exercising appellate jurisdiction, which lends itself to a determinative conclusion that physical presence is not a necessary requirement for continuing connection. See, for example, Moses v State of Western Australia [2007] FCAFC 78 at [306] per Moore, North and Mansfield JJ.

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