Buck v State of New South Wales, Lockhart J, 7 April 1997, unreported - cons.

ROBERT WILLIAM DUNN BY HIS AGENT THE QUEENSLAND COMMERCIAL FISHERMEN'S ORGANISATION

JUDGE: BEAUMONT J. DATE: 8 DECEMBER 1997 PLACE: CAIRNS

REASONS FOR JUDGMENT BEAUMONT J: This is an application under s 87 of the Native Title Act 1993 for orders determining that native title rights and interests exist in relation to land and waters near Cooktown in circumstances where the interested parties have reached agreement. The lands in question (of about 110,000 ha.) were the subject of a grant in 1986 by the Queensland Government to the Hopevale Aboriginal Council to be held upon trust for the benefit of aboriginal inhabitants. After lengthy negotiations involving mediation by the National Native Title Tribunal, agreement has been reached on the part of all concerned. Their agreement is evidenced in the comprehensive documentation now before the Court. The chronology of the relevant events is described in the annexed document. I am satisfied that, if it is appropriate to do so, the Court has the power to make a determination of native title (see Buck v State of New South Wales, Lockhart J, 7 April 1997, unreported). The real question is whether it is appropriate to make such an order. In my view, it is appropriate to make the determination of native title now sought. In so concluding, I am conscious of the need for the Court to exercise caution where a declaratory order involving property rights is sought. But I also take into account, in particular, the existence of the 1986 grant, the anthropological opinion mentioned in the evidence, the course of the negotiations between the interested parties and their professional representatives; and the circumstance that the matter is no longer contentious. As was the case in the Crescent Head claim in Buck, above, there is no need for the Court, in proceeding under s 87, to embark upon a detailed, substantive examination of this claim. For present purposes, a more limited examination by the Court of the evidence is appropriate. I am satisfied that a determination that native title exists should now be made. I note the matters and make orders that a determination of native title be made in the terms of the determination which I have initialled, dated today and placed with the papers. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate: Dated: 8 December 1997 Interpreter: Mr N Pearson

Counsel for the Applicants: Mr W Sofronoff QC

Solicitor for the Applicants: Phillips Fox

Counsel for the First Respondent: Mr P Poynton

Solicitor for the First Respondent: Terry Fisher & Co

Counsel for the Second Respondent: Mr P Smith

Solicitor for the Second Respondent: Crown Solicitor (Queensland)

Solicitor for the Third, Fifth, Seventh and Ninth Respondents: Mr G Clark, Phillips Fox

Solicitor for the Fourth and Eighth Respondents: Mr P Gore, Clayton Utz

Solicitor for the Sixth Respondent: Mr O Gilkerson, MacDonnells

Solicitor for the Tenth Respondent: Ms L Goodchild, Cape York Land Council

Date of Hearing: 8 December 1997

Date of Judgment: 8 December 1997

Erica Deeral on behalf of the Gamaay Peoples & Ors v Gordon Charlie & Ors Supplementary Chronology 21 February 1996 The Hopevale clans, comprising the traditional owners of the region north of Cooktown, met in Cooktown, negotiated, and signed a Heads of Agreement whereby the clans agreed (among other things) to make a joint native title application over the Hopevale Deed of Grant in Trust(" dogit"). 5 June 1996 The Hopevale native title determination application (" the application") was lodged with the National Native Title Tribunal (Brisbane Registry) on 5 June 1996 under section 13(1) and section 61 of the Native Title Act 1993 (Cth) ("the Act"). The application covered the land and waters of the Hopevale dogit. The application excluded the exclusions specifically listed on Plan B5222, and any land that was formerly freehold land (except dogit land). The application was made on behalf of the native title holders of eleven Hopevale clans ("the applicants") being: Gamaay Warra Dingaal Warra Nugal Warra Thuubi Warra Nguurruumungu Warra Dharrba Warra Binhthi Warra Thiithaarr Warra Thanil Warra Nguymbaarr Nguymbaarr Warra Ngaatha Warra Each clan was represented in the application by one registered native title claimant. The application was formally amended on 10 November 1997 to add the Buurnga clan and the Gulaal clan as the twelfth and thirteenth applicant clan, pursuant to agreements between the clans reached in January 1997. 21 June 1996 The application was accepted by the Registrar of the National Native Title Tribunal pursuant to section 63 of the Act. The application was given the reference number QC 96/ 15. 14 October 1996 At the conclusion of the public notification period pursuant to section 66 of the Act, the following parties were registered as parties to the application (in addition to the applicants): Australian Maritime Safety Authority - Minter Ellison Lawyers Cape Flattery Silica Mines Pty Ltd - Clayton Utz, Solicitors Cape York Land Council - Louise Goodchild Cook Shire Council - Mr Hans Looser Far North Queensland Electricity Corporation - MacDonnells Gordon Charlie - Mr Peter Poynton Hopevale Aboriginal Council - Mr Stephen Wallace Minister tor Natural Resources - Crown Solicitor's Office (later, Honourable Robert Borbidge, MLA for the State of Queensland) William Robert Dunn - Queensland Commercial Fishermen's Organisation (later, Queensland Commercial Fishermen's Organisation as agent for Robert William Dunn and now represented by Clayton Utz, Solicitors) Telstra Corporation Limited - Holding Redlich February 1996 - November 1996 The applicants participated in a number of pre-plenary mediation meetings between themselves to resolve some internal issues, and also met with some of the parties. Following a pre-plenary meeting with the Hopevale Aboriginal Council in August 1996, the applicants entered into an agreement with the Hopevale Aboriginal Council in December 1996, in which the Council acknowledged the traditional ownership of the applicants, and the applicants acknowledged the functions of the Hopevale Aboriginal Council. Both parties agreed to respect one another in the future. 20 November 1996 A section 72 plenary conference was convened on 20 November 1996. Justice Robert French, President of the TribunaL and the Honourable Hal Wootten QC were the members for QC96/15. 20 November 1996 - October 1997 - Mediation meetings The applicants participated in regular meetings throughout the course of mediation. This included: • Full plenary conferences of the Tribunal scheduled at Hopevale. • Full plenary teleconferences with representatives only. • Meetings between the applicants and particular parties with the Tribunal. • Meetings between the applicants and particular parties without the Tribunal. Significant outcomes in Mediation There were a number of significant outcomes in mediation. In January, February, and March 1997, the applicants participated in a number of intensive workshops covering various internal issues. Clan Boundaries

1. The applicants mapped their internal clan boundaries, and prepared a clan boundary map for submission to the State, to facilitate the recognition of native title for each clan over their respective clan estates. Anthropology report on connection
2. Following an extensive consultation process with their anthropologist which brought to light a number of issues later requiring the amendment of the native title application, the applicants provided the State Government with a detailed advice on their traditional connection to the area covered by QC96/ 15 on 23 April 1997. The State, after considering the report, later accepted that the applicants were the traditional owners for the area under application. Shared Land at Cape Flattery
3. Through the mediation process, including the mapping and anthropologist reporting process, an 'arrangement' was worked out whereby the Dingaal and Nguurruumungu clans agreed to 'share' an area of land. This is marked on the map included as Annexure 1 to the Schedule of the Deed of Agreement as' area the subject of an agreement between the Dingaal and Nguurruumungu clans'. The two clans also entered into a confidential agreement regarding use of the shared land area. Compact Of Association
4. The traditional owners who are the native title holders of the clans agreed to form a body called the Hopcvale Congress of Clans in February 1996 at the Cooktown meetings. Congress was informally constituted during the mediation of QC96/ 15, and the body evolved during that process. The Congress is comprised of one representative of each clan. The Congress, together with other members of the clans met approximately once every three weeks at Hopevale throughout the mediation of the application. To formalise the arrangements which had been in place for nearly 18 months, on 23 October 1997, a deed called the 'Compact of Association' was signed by one signatory for each of the twelve clans, and five signatories for the Buurnga clan. Interest Regularisation Process
5. An issue arose during mediation regarding the status of people (traditional owners and historical owners) living on the dogit on tenures apparently issued by the Hopevale Aboriginal Council and the State Government. 5.1 A question of validity of the leases was resolved within an extensive mediation process, conducted to determine how the interests of the "lease holders" and the applicants could be reconciled 5.2 The result of this process was the section 21 interest regularisation agreement in Annexure 4 to the Schedule to the Deed of Agreement. The section 21 Agreement contains a full explanation of the history and current status of the interest regularisation process. May 1997 - October 1997 Negotiation of Draft Determination of Native Title
6. By approximately May 1997, mediation had progressed to the point where parties were ready to consider a draft determination of native title.
7. Five full drafts of a draft determination of native title were circulated to parties between May and October 1997. The product of this process are the Deeds of Agreement lodged with the Court on 14 November 1997. The scheme of the Agreements is as follows: 7.1 There is a principal Deed of Agreement (" the Deed") between the applicants and the parties, whereby all of the parties agree to approach the Federal Court for a determination of native title in the form of the Schedule to the Deed. 7.2 There is a Schedule to the Deed ("the Determination"), setting out the native title rights and interests the parties agree the applicants have, and the limitations on those rights, etc. 7.3 There are a series of Annexures to the Schedule to the Deed. The contents of those Annexures is explained in the Schedule. One of the major components of the Annexures is a series of section 21 agreements negotiated by the applicants, specified parties (Telstra, Far North Queensland Electricity Corporation and Hopevale Aboriginal Council), and the State during mediation. 7.4 There is a Supplementary Deed between the Applicants, the State and the Queensland Commercial fishermen's Organisation ("the QCFO Deed"). Execution of the Deeds