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[2024] FCA 1018
Federal Court of Australia
2024-09-06
Ms J, Mr P, Mr J, Rangiah J
Original judgment source is linked above.
The application 12 The application for a determination of native title was filed in the Federal Court on 22 October 2015. 13 As has been indicated, the parties propose a consent determination over a substantial, but not the whole of Part A. For the balance of Part A, the parties are considering the need for the determination of a separate question in respect of tenure issues (and associated extinguishment of native title), further research and discussion with a neighbouring native title group, and the negotiation of Indigenous land use agreements to address tenure matters. 14 The persons comprising the applicant are: Angela Braun, Elizabeth Cashmere and Bradley Go-Sam. 15 The respondents to the application are: the State of Queensland, Cassowary Coast Regional Council, Commonwealth of Australia, Tablelands Regional Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Archer Management Pty Ltd, CleanCo Queensland Limited, EPM 14880 Pty Limited, John Davey Mudge, William John Wieland, Gregory John Barry, Lorraine Cross, Caroline Anne Waddell, Peter Hal Waddell, Sam Waddell, Jelka Grkovic, Shevaun Ynis Grkovic, Yadran Grkovic, Susan Elizabeth Tobler and Brenden Arthur Tobler. 16 All parties to the application have reached agreement that native title exists in the proposed determination area and as to the nature and extent of those native title rights and interests. That agreement, made under s 87A(1)(b) of the Act, was filed in the Federal Court on 24 May 2024. 17 The evidence of connection filed by the applicant primarily includes claimant evidence in the form of affidavits, witness statements and several expert reports prepared by anthropologists including Dr Benjamin Smith, Dr John Burton, Rosalind Glass, Ophelia Rubinich and Sarah Bell. 18 The evidence of members of the native title claim group about their traditional laws and customs and rights and responsibilities in respect to land and waters is of the highest importance: Sampi v Western Australia [2005] FCA 777 at [48]. The claimant evidence of connection is comprised of affidavits and witness statements of the following persons: Affidavit of Ernest Grant affirmed 9 September 2015 Affidavit of Bradley Go-Sam affirmed 10 September 2015 Affidavit of Elizabeth Cashmere affirmed 22 March 2016 Affidavit of Narelle Miller affirmed 23 March 2016 Witness statement of Margaret Freeman dated 3 August 2022 Witness statement of Elizabeth Cashmere dated 3 August 2022 Witness statement of Bradley Go-Sam dated 3 August 2022 Witness statement of Phyllis Grant dated 4 August 2022 Witness statement of Joyce Bean dated 25 October 2022. 19 The applicant also relies on the following reports of expert anthropologists: Anthropological Report in support of Jirrbal People Native Title Applications QC03/1 (Q60001/03), QC04/3 (Q41/04), and QC04/4 (Q42/04) by Dr Benjamin Smith and Dr John Burton Genealogical Report in support of Jirrbal People Native Title Determination Applications QUD 6007/06, QUD 41/04 and QUD 42/02 by Rosalind Glass Jirrbal People Application Report by Ophelia Rubinich Expert Opinion regarding whether Wambino should be added as an apical ancestor to the Jirrbal #4 native title claim and other matters by Dr John Burton Sam Boyd - Ancestor Research Report by Sarah Bell. 20 In their Anthropological Report, Dr Smith and Dr Burton examine Jirrbal laws and customs, their sociocultural system and, "the ways in which this system has continued and developed from that which existed 'at the threshold of colonisation' to the present". 21 Dr Smith and Dr Burton observe that the Jirrbal People have continued to observe customary practices, which have been handed down to the present generation by their forebears, including with respect to totemic and spiritual beliefs, sites, dispute resolution and decision-making. 22 Dr Smith concludes that: It is apparent… that members of contemporary Jirrbal 'families' and their forebears have not only maintained a system of law and custom pertaining to Jirrbal country in the region since early colonial times, and up to the present, without significant interruption in transmission, but that a significant proportion of the members of these families have maintained this system of law and culture, and their Jirrbal traditions, as a cornerstone of their day-to-day lives whilst continuing to live on Jirrbal country across the region. 23 In the Jirrbal People Application Report, Ms Rubinich observes that: Although with some adaptation, the laws and customs acknowledged and practiced by the contemporary Jirrbal society shows clear continuity with the past. Features apparent in the contemporary Jirrbal group are derived from the beliefs and systems of the society likely to have been present at effective sovereignty. 24 Ms Rubinich concludes that, "a number of these laws and customs have continued from and have a basis in the traditions of the pre-sovereign society". 25 The native title holders are the Jirrbal People. The Jirrbal People are those Aboriginal persons who: (1) are descended by birth or by adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Jirrbal People, from one or more of the following apical ancestors (listed alphabetically): • Betty (aka Biddy) Gordon • Bonnel Logan and Jinnie • Bulbulyarraman Willie Mango or his wives Nellie and Calida • Charlie (Jurabagle) Woods • Chloe McKenzie/Cameron • Dubula Lorna Lawrence (nee Robinson) • Ethel Perrott • Harry Maloon • Jack (Deinjo) Watson/Major • Jack Robinson • Jerry Linedale or Maggie • Jimmy Darcy or his wives Polly and Lassie Darcy • Jimmy Murray (aka Jimmy Minegan) or his wives Jinnie (aka Jay Minigan) and Misashay (aka Maryanne) • Joe Robinson or Eva Robinson • Katie Cameron • King Jimmy Robertson/Robinson (aka Jimmy King) or his wives Kitty Robertson or Polly Malone • King Sandy Maynard or his wife Annie Thomas • Linda Duffin (aka Linda McGuire) • Lizzie Palmer, Maggie Cross or Mary Todd • Lucy Gordon/Lifu • Minnie Silent • Murrigami (aka Jim Clarke) • Murriguemie • Nellie Deagon • Nellie Googoonburra • Nellie Keough/James, Merti/Bertie or Peter • Nellie Williams • Polly Hull • Polly Robinson (1) (aka Polly Ingham) or her husband Mick Robinson • Polly Robson • Romeo Robson (aka Robinson) or his wife Topsy • Rosie Congoo • Sam Boyd • Toby and Polly • Tommy Gardiner (aka Tommy Anderson) • Tommy Herberton's siblings • Tommy Toombs or his wife Polly • Una Woodleigh • Wanmal and Yugibidjal • Youall Biddy-Robinson or her husband Tommy Herberton • Youall Biddy-Robinson's siblings; (2) identify themselves as Jirrbal; and (3) are accepted as Jirrbal by other Jirrbal People in accordance with the traditional laws acknowledged and the traditional customs observed by the Jirrbal People. 26 The evidence filed, including the expert reports and the witness statements and affidavits provided by the claimants, provide cogent evidence of the continuity of the traditional laws and customs of the Jirrbal People extending back to before the time of sovereignty. The evidence supports the claim that the traditional laws acknowledged and the traditional customs observed give the Jirrbal People the rights and interests set out in Orders 6 and 7 of the Orders.
The agreement reached between the parties 27 Section 87A(4) of the Act gives the Court the power to make an order consistent with the terms of a proposed determination of native title agreed between the parties to the proceeding without holding a hearing in relation to the application if the Court considers that: an order in, or consistent with, the terms of the proposed determination would be within its power; and it would be appropriate to do so. 28 The conditions under s 87A of the Act that enable the Court to make the determination without a hearing are: There is a proceeding in relation to an application for a determination of native title: s 87A(1)(a); At any stage of the proceeding after the end of the period specified in the notice given under s 66 of the Act, agreement is reached on a proposed determination of native title in relation to an area that is part of, but not all of, the area covered by the application: s 87A(1)(b); Certain persons are parties to the agreement, including "each person who holds an interest in relation to the land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made": s 87A(1)(c); The terms of the proposed determination are in writing and signed by or on behalf of those parties: s 87A(1)(d); and The Court is satisfied that an order in, or consistent with, the terms of the proposed determination, would be within its power and the Court considers it appropriate to make the orders sought: s 87A(4). 29 In considering whether it is appropriate to make the orders sought, the Court's role is confined to considering the evidence filed for the purpose of determining whether the parties have entered into an agreement that has been freely made on an informed basis: Nangkiriny (on behalf of the Karajarri People) v State of Western Australia (2002) 117 FCR 6 at [14]. The Court is not required to make a judicial determination of the merits of the claim: Button (on behalf of the Koa People) v State of Queensland [2021] FCA 1190 at [5]. In considering the appropriateness of the orders, the Court considers whether the parties to the agreement have acted rationally and in good faith: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [30]. 30 The requirements of the Act have been satisfied: There is a proceeding in relation to an application for a determination of native title: s 87A(1)(a). The period for notification of the application under s 66 of the Act has ended, and the parties to the proposed determination have recorded their agreement as to the terms of a determination of native title in relation to the proposed determination area: s 87A(1)(b) and (c). The parties to the proposed determination have recorded their agreement in a signed Minute of Consent: s 87A(1)(d). An order in terms of the Minute or consistent with the Minute would be within the Court's power because: • The application has been made in accordance with s 61 of the Act; • The application is for a determination of native title in relation to an area for which there are no other approved determinations of native title: s 13(1)(a); and • the Minute agreed to by the parties complies with ss 94A and 225 of the Act: s 87A(4). 31 It is appropriate for the Court to make the orders sought because: The parties have freely entered into the agreement on an informed basis, having had the opportunity to consider and assess the evidence relied upon by the applicant. The parties have agreed as to the nature and extent of rights and interests, and the proposed determination is unambiguous and certain as to the rights and interests declared. There are no proceedings before the Court relating to native title determination applications that cover any part of the area that is the subject of this application. 32 In addition, it is appropriate for the Court to make the orders sought because: The parties have freely entered into the agreement on an informed basis, having had the opportunity to consider and assess the evidence relied upon by the applicant. The parties have agreed as to the nature and extent of rights and interests, and the proposed determination is unambiguous and certain as to the rights and interests declared. There are no proceedings before the Court relating to native title determination applications that cover any part of the area that is the subject of this application. 33 The terms of the proposed determination also satisfy the requirements of s 225 of the Act.
Prescribed Body Corporate 34 Section 55 of the Act relevantly provides that if the Federal Court proposes to make an approved determination of native title, and the determination is that native title exists at the time of making the determination, the Federal Court must, at the same time or as soon as practicable after it makes the determination, make a determination under ss 56 and 57 of the Act. 35 Section 56(1) of the Act requires that the Court must determine whether the native title is to be held in trust, and if so, by whom. The applicant has consented to orders determining that the native title is to be held in trust. The applicant seeks orders that the Wabubadda Aboriginal Corporation RNTBC (ICN 7117) is to be the prescribed body corporate for the purposes of ss 56(2)(b) and 56(3) of the Act. The applicant relies on an affidavit of Louise Ngahia Keepa which annexes a form signed by Kevin Murphy, an authorised representative of the Jirrbal People common law holders, formally nominating Wabubadda Aboriginal Corporation as the prescribed body corporate in respect of the determination. 36 I am satisfied that the Wabubadda Aboriginal Corporation is a prescribed body corporate within reg 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). 37 It is appropriate to determine that the Wabubadda Aboriginal Corporation is to be the prescribed body corporate for the purpose of s 57 of the Act and perform the functions prescribed in s 57(3) of the Act.
Conclusion 38 The Court will make orders in accordance with the orders agreed by the parties. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.
SCHEDULE OF PARTIES QUD 983 of 2015 Respondents Fourth Respondent: TABLELANDS REGIONAL COUNCIL Fifth Respondent: ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Sixth Respondent: TELSTRA CORPORATION LIMITED (ABN 33 051 775 556) Seventh Respondent: ARCHER MANAGEMENT PTY LTD ACN 010 320 591 Eighth Respondent: CLEANCO QUEENSLAND LIMITED (ABN 85 628 008 159) Ninth Respondent: EPM 14880 PTY LTD Tenth Respondent: JOHN DAVEY MUDGE Eleventh Respondent: WILLIAM JOHN WIELAND Twelfth Respondent: GREGORY JOHN BARRY Thirteenth Respondent: LORRAINE CROSS Fourteenth Respondent: CAROLINE ANNE WADDELL Fifteenth Respondent: PETER HAL WADDELL Sixteenth Respondent: SAM WADDELL Seventeenth Respondent: JELKA GRKOVIC Eighteenth Respondent: SHEVAUN YNIS GRKOVIC Nineteenth Respondent: YADRAN GRKOVIC Twentieth Respondent: SUSAN ELIZABETH TOBLER Twenty-First Respondent: BRENDEN ARTHUR TOBLER
Braun on behalf of the Jirrbal People #4
State of Queensland
RANGIAH J: 1 The applicant seeks a determination of native title pursuant to ss 61 and 225 of the Native Title Act 1993 (Cth) (the Act) on behalf of the Jirrbal People. 2 Three determinations of native title have been previously made in favour of the Jirrbal People: see Cashmere (on behalf of the Jirrbal People #1) v State of Queensland (2010) 283 ALR 610; [2010] FCA 1090 (the Jirrbal Determinations). Each of the Jirrbal Determinations was conditional on the registration of certain Indigenous land use agreements, and took effect on 7 February 2011. 3 On 25 March 2022, the Court made orders for the administrative division of the area covered by the application into two parts, Part A and Part B. 4 The parties have indicated their consent to a determination that the Jirrbal People hold native title rights and interests in a substantial, but not the whole, of Part A. 5 The determination area covers the area set out at Order 3 of the Orders. It encompasses approximately 82,315 ha of land and waters in far north Queensland, in the southern Atherton Tableland, from Herberton south to Koombooloomba National Park. 6 The Court is satisfied, for the reasons below, that it is within the power of the Court to make the orders sought, and that it is appropriate to do so.
(2010) 283 ALR 610
(2001) 115 FCR 109
(2002) 117 FCR 6