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[2016] FCA 694
Federal Court of Australia
2016-06-10
Reeves J
Original judgment source is linked above.
BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),
BY CONSENT THE COURT ORDERS THAT:
BY CONSENT THE COURT DETERMINES THAT: 3. The Determination Area is the land and waters described in Schedule 1A, and depicted in the map attached to Schedule 1B. 4. Native title exists in relation to the Determination Area described in Schedule 1A. 5. The native title is held by the Bar Barrum People described in Schedule 3 ("the native title holders"). 6. Subject to paragraphs 7, 8 and 9 below the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 1A are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (e) take and use the Water of the area for personal, domestic and non-commercial communal purposes; (f) conduct ceremonies on the area; (g) be buried and bury native title holders within the area; (h) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm; (i) teach on the area the physical and spiritual attributes of the area; (j) hold meetings on the area; (k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 7. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the native title holders. 8. The native title rights and interests referred to in paragraph 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 9. There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 10. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4. 11. The relationship between the native title rights and interests described in paragraph 6 and the other interests described in Schedule 4 (the "other interests") is that: (a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests; (b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and (c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
DEFINITIONS AND INTERPRETATION 12. In this determination, unless the contrary intention appears: "land" and "waters", respectively, have the same meanings as in the Native Title Act 1993 (Cth); "Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; "Local Government Act" has the meaning given in the Local Government Act 2009 (Qld); "Local Government Area" has the meaning given in the Local Government Act 2009 (Qld); "Natural Resources" means: (a) any animal, plant, fish and bird life found on or in the lands and waters of the Determination Area; and (b) any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area, that have traditionally been taken and used by the native title holders, but does not include: (a) animals that are the private personal property of another; (b) crops that are the private personal property of another; (c) minerals as defined in the Mineral Resources Act 1989 (Qld); or (d) petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); "Water" means: (a) water which flows, whether permanently or intermittently, within a river, creek or stream; (b) any natural collection of water, whether permanent or intermittent; (c) water from an underground water source. Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).
THE COURT DETERMINES THAT: 13. The native title is held by the common law holders, being the persons referred to in paragraph 5 of the determination. 14. Within 12 months from the date of the determination, or such further time as the Court may allow, a representative of the common law holders must, by written notice to the Federal Court: (a) indicate whether the native title is to be held in trust; and (b) nominate a prescribed body corporate in accordance with s 56(2) or s 57(2) of the Native Title Act 1993 (Cth). 15. In the event that no notice is given within the time specified in paragraph 14, the matter is to be listed for further directions. 16. Until such time as there is a registered native title body corporate in relation to the Determination Area, any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the native title holders or the common law holders may be served upon the North Queensland Land Council Native Title Representative Body Aboriginal Corporation, and such service shall be deemed to be sufficient. SCHEDULE 1 - Determination Area Schedule 1A - Description of Determination Area The Determination Area comprises all of the land and waters described below and depicted in the map contained in Schedule 1B, excluding the areas described in Schedule 2. To the extent of any inconsistency, the written description prevails over the map contained in Schedule 1B. All of the land and waters described below and shown on the map at Schedule 1B: Area Description Lot 480 on OL427
SCHEDULE 1B - MAP OF THE DETERMINATION AREA SCHEDULE 2 - AREAS NOT FORMING PART OF THE DETERMINATION AREA The following areas of land and waters are excluded from the Determination Area.
INTRODUCTION 1 On 28 June 2001, fifteen years ago almost to the day, the late Hely J made a determination of native title in the first of a series of native title determination applications made on behalf of the Bar Barrum People. Bar Barrum People #1 was lodged with the National Native Title Tribunal on 8 November 1996, just short of 20 years ago. It was therefore resolved approximately four and a half years after it was lodged. It is a matter of grave concern that it has taken another 15 years since the determination in Bar Barrum People #1 to resolve four of the remaining seven Bar Barrum claims. There will still remain three applications - Bar Barrum People #5, Bar Barrum People #8 and Bar Barrum People #9.
THESE FOUR APPLICATIONS 2 These four applications cover an area of land and waters in North Queensland on the Atherton Tableland in and around the Walsh River and to the west of the Wild River. QUD 6015 of 2001 (Bar Barrum People #2) and QUD 6017 of 2001 (Bar Barrum People #3) were filed with the Court on 27 April 2001. QUD 6030 of 2001 (Bar Barrum People #4) and QUD 6032 of 2001 (Bar Barrum People #6) were filed with the Court on 28 September 2001. The applications have been amended a number of times to variously: change the claim group description; reduce the claim area; and replace the Applicant in Bar Barrum People #2, #3 and #4. All of the applications have been registration tested and notified and, following the various amendments, they remain on the Register of Native Title Claims. 3 The parties have now informed the Court that they have now reached agreement to resolve these four applications and they have requested that the Court make determinations of native title in the terms of the agreements under s 87 filed with the Court on 13 May 2016 (the s 87 Agreements).
THE LONG HISTORY OF THE BAR BARRUM PEOPLE'S CLAIMS 4 In my judgment in Kearns on behalf of the Gunggari People #2 v State of Queensland [2012] FCA 651, I endorsed the observations of Rares J in Prior on behalf of the Juru (Cape Upstart) People v State of Queensland & Ors (No 2) [2011] FCA 819 (at [32]) as follows: Delays of the kind experienced in this litigation cannot be tolerated. Justice delayed is justice denied. As Lord Hailsham of St Marylebone LC said in Reg v Lawrence [1982] AC 510 at 517B: "Where there is delay the whole quality of justice deteriorates." 5 In this instance, an example of that deterioration is the fact that, in the past 15 years, a number of senior members of the Bar Barrum People have passed away without being able to witness the recognition of their native title that will occur today. 6 In recent years, particularly since the 2009 amendments to the Act and the introduction of Pt VB to the Federal Court of Australia Act 1976 (Cth), the Court has sought to use its case management powers to attempt to reduce and avoid these sorts of delays occurring in its native title lists. The Court has also adopted a priority listing system of native title proceedings to attempt to ensure that its native title lists are dealt with as justly, quickly, inexpensively and efficiently as possible. These Bar Barrum applications were given priority listing under that system, but regrettably the progress to consent determination was impeded when a question arose as to whether certain World War II military activities and orders brought about an extinguishment of the native title rights that existed in part of the determination areas. That issue was eventually resolved in the High Court in Queensland v Congoo (2015) 320 ALR 1; [2015] HCA 17 in a split decision. 7 It may be some small comfort to the Bar Barrum People that it has only taken a little over a year since that decision to achieve these consent determinations today. It is to be hoped that the remaining three Bar Barrum claims can be brought to consent determinations quickly so that the quality of justice can be restored, at least to some extent, and the Bar Barrum People and their neighbours can move to the post-determination stage free of litigation.
THE CRITERIA IN SECTION 87 OF THE NATIVE TITLE ACT 1993 (CTH) ARE SATISFIED 8 The power of the Court to give effect to the parties' agreement is founded on s 87 of the Native Title Act 1993 (Cth) (the NTA). Section 87(1) of the NTA sets out the various conditions which will trigger the jurisdiction of the Court in the event that the parties reach agreement on the terms of an order in relation to the proceeding. The first necessary criterion is that the notice period under s 66 of the NTA must have ended prior to the parties' written agreement being filed with the Court (s 87(1)). The National Native Title Tribunal's notifications of the Bar Barrum People #2 and Bar Barrum People #3 applications was completed in 2001 and the Bar Barrum People #4 and Bar Barrum People #6 applications in 2003 and so that criterion is met. Secondly, the agreement of the parties must be on the terms of an order of the Court in relation to the proceedings, part of the proceedings or a matter arising out of the proceedings (s 87(1)(a)). In this instance the agreement of the parties relates to the whole of the proceedings and so that criterion is also met. Thirdly, the terms of the agreement must be in writing, signed and filed with the Court (s 87(1)(b)). Again, this criterion has been met with the filing on 13 May 2016 of the s 87 agreements, each of which attaches a draft consent determination. 9 Having satisfied those matters, the fourth criterion is that the Court must be satisfied that the terms of the order sought or an order consistent with those terms would be within the power of the Court (s 87(1)(c)). An order will be within the power of the Court if it is consistent with s 94A of the NTA, the rights and interests included in the proposed determinations are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determinations. 10 Section 94A requires the Court, in making a determination, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 outlines the content of a determination of native title as: 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. (Emphasis in original; note omitted) 11 The Bar Barrum Applicant has provided a detailed set of submissions in which it has described the native title rights and interests the Bar Barrum People hold in the determination areas. Those submissions reference parts of a long list of anthropological and other reports and affidavits as follows: (1) B & E Sommer, 'Bar Barrum Genealogies and Claimant List as at 24 April 2001'; (2) B & E Sommer, 'A Preliminary Anthropological Assessment of the Bar Barrum Native Title Claim' (October 1997); (3) Dr M Wood, 'Report on Babaram Native Title Determination Application' (June 2009) (Wood); (4) Dr J Weiner, 'Bar Barrum Supplementary Report on Native Title' (March 2011); (5) L Allwood, 'Bar Barrum Genealogy Report' (May 2011); (6) G Sanford, 'Bar Barrum Supplementary Genealogy Report' (December 2011); (7) NQLC, 'Bar Barrum People Native Title Determination Applications Supplementary Report: Law and Custom Regarding Social Organisation and Land Tenure'; (8) Dr A Greenwood, 'Final review of The Bar Barrum People's native title claim group description: (Claim group description authorised on 17 February 2016)' (April 2016); (9) Affidavit of claimant/applicant John Wason, affirmed 21 July 2011; (10) Affidavit of claimant Doreen Duong, affirmed 25 November 2010; (11) Affidavit of claimant/applicant Tom Congoo, affirmed 27 July 2011; (12) Affidavit of claimant/applicant Layne Malthouse, affirmed 14 July 2011; (13) Affidavit of claimant Amias Bong, affirmed 21 July 2011; and (14) Affidavit of claimant Terri Anning, affirmed 25 July 2011. 12 Having read and considered that material, I am satisfied that the native title rights and interests of the Bar Barrum People in the determination areas are recognisable by the common law of Australia. 13 With specific regard to ss 94A and 225 of the NTA, having examined the draft consent determinations attached to the s 87 agreements, I am satisfied that each of the matters outlined in those sections is properly articulated therein. Finally, I am also satisfied that there is no other determination of native title in existence over any part of the determination areas. 14 The final condition the parties need to meet in order to have the Court make a consent determination of native title concerns the operation of s 87(1A). That section essentially requires the Court to be satisfied that it is appropriate to make a determination in terms of the parties' agreement. 15 In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) (at [5]-[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining this question of "appropriateness". It is not necessary for me to repeat all those observations here, it will suffice to set out the concluding summary as follows (at [14]): It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation..; whether the terms of the proposed order are unambiguous and clear …; and whether the agreement has been preceded by a mediation process … (Citations omitted) 16 As I have already mentioned above, the Bar Barrum Applicant has filed a detailed set of submissions in support of these proposed consent determinations. Having regard to those submissions, I am satisfied that the steps taken by the parties as described therein, together with the fact that all parties have had the advantage of competent legal representation, indicates that their agreement is free and informed. I also take into account the fact that these proposed consent determinations have been preceded by an intense process of case management conducted by a Deputy Registrar of this Court. Finally, I am also satisfied that the terms of the proposed orders are unambiguous and clear. I am therefore satisfied it is appropriate to make the draft determinations attached to the s 87 agreements.
A REVIEW OF SOME OF THE MATERIALS RE THE BAR BARRUM PEOPLE'S NATIVE TITLE 17 Notwithstanding this conclusion, I consider it is appropriate to review some of the anthropological evidence and the evidence of the Applicants that go to establish that the Bar Barrum People hold native title to the determination areas. As in Nelson, I do not do this to second guess the process that has been followed by the parties as outlined above, but to give some acknowledgment to the time and effort that has obviously been devoted to the preparation of the materials that have been placed before the Court in support of these applications. 18 The determinations recognise that native title is held by the descendants of the following people: (1) Rosie, also known as Lucy (mother of William Congoo); (2) Nellie (mother of Albert Bennett); (3) Millie (mother of Alick/Aleck Collins also known as Chalk also known as Stevens) and of her siblings Fred and Jack Solomon; (4) Maggie Watsonville (mother of May Thynne); (5) Nora Miller nee Clark, or of her brother Billy; (6) Arkaragan and Kurimbu (parents of Jack Robinson); (7) Jack Brumby (father of Peter Fagan and Monday); (8) Archie Perrott, also known as Campbell (father of Margaret Perrott); (9) Lizzie Simmonds (mother of Mamie Simmonds) (10) John Burt Grainger (father of John Grainger and Paddy Hastie); (11) Nellie Williams or of her sister Ethel Perrott; (12) Bessie Tiger (mother of Peter Freeman); or people who are, or were, adopted into one of the above descent groups in accordance with the traditional laws and customs of the Bar Barrum People. 19 Mr Tom Congoo, Ms Doreen Duong, Ms Layne Malthouse, Mr John Wason, Mr Amias Bong and Ms Terri Anning who are all Bar Barrum People have filed affidavits that provide primary evidence of the continued acknowledgement and observance of a range of Bar Barrum laws and customs with respect to cultural knowledge, spiritual beliefs, sites, decision making and resource use. 20 Dr Wood says in his report that "the term Barbaram is used to define a distinct territory or area of country that was created by totemic ancestors of the current Barbaram ancestors". He has examined in detail the genealogical history of the claimants, their rules of recruitment and their occupation of the determination areas at first contact. Detailed genealogies have been filed that support the identification of the members of the Bar Barrum claim group. Dr Wood has also referenced the works of a number of anthropologists, linguists and ethnographers, including Dr Walter Roth, Archibald Meston, RH Matthews, Lauriston Sharp and Norman Tindale as to the exercise of the traditional laws and customs of the Bar Barrum People. 21 The first Europeans to travel through the Bar Barrum People's country were part of the expedition led by Ludwig Leichhardt in 1845, but there is no recorded direct contact with the indigenous inhabitants of the area in Leichhardt's journals. On 23 August 1848, the explorer Edward Kennedy and his party camped on the Walsh River. The expedition's botanist recorded what is thought to be the first direct contact between the Bar Barrum People and Europeans passing through the area. 22 Dr Wood's report explores in some detail the Bar Barrum People's early contact with Europeans. Tin and gold were discovered around Herberton in the 1880s. A number of short-lived towns were established around the mines that sprung up and the influx of white settlers had a catastrophic effect on the lives of the local Aboriginal communities. A police presence was established at Thornborough and Herberton. In his Report, Dr Wood says that: Thornborough had to cope with consequences of these kinds of frontier activities. In 1882, some 200 starving Aborigines presented themselves within the small township itself, and responsible residents realised they were dealing with a state of things that was a 'disgrace to civilization' - 'the white man having possession of the rivers, hence no fish, the Marsupial Board having possession of the forest country, hence no kangaroo' (Evans, Saunders and Cronin 1974:90-91 citing correspondence in QSA Col/A 315). At Thornborough in 1882 after 'a war of extermination had been carried on' against the Aborigines for a certain period, they were 'bought in' by the Byrnes Brothers and 'partially tamed' through offers of food and clothing. After several weeks, when they were no longer afraid of being 'shot down like dogs', they were introduced to the township and there put 'to work for their food … carrying firewood and water, gardening and washing' (Evans, Saunders and Cronin 1974:111, citing correspondence in QSA Col/A315,). Supplementing the activities of the Byrnes Brothers was the formation of an 'Amelioration of Aboriginals Committee' at Thornborough. It may be that the public visibility of this Committee diminished the likelihood that 'there was further frontier violence in this area that is unknown to police reports and archival correspondence' (Burton 2008:14). Jack Robinson remembered some of this history when interviewed by Tindale in September 1938. According to Burton, if Tindale got Jack Robinson's age right, Jack would have been an infant when these events occurred. Tindale reports Jack Robinson as saying 'when the white people opened up Booloomboola Stn the Barbaram congregated there from the rough country in which they lived. Principal hiding places were on the mountains and in the Big Gorge' (Tindale Journal 2 September, 1938, Burton 2008:10).
PRESCRIBED BODY CORPORATES 23 The parties have sought orders that have the effect of delaying the operational commencement of these determinations until a prescribed body corporate is nominated by the Bar Barrum Applicant and accepted by the Court. Upon the determinations taking effect, native title is not to be held in trust, but rather will be held by the determined native title holders. The Bar Barrum Applicant is to nominate within twelve months of the determinations a prescribed body corporate for the purposes of s 57(2) of the NTA that will perform the functions outlined in s 57(3) of the NTA. In the event that no such nomination is received within the twelve months following the determinations, the matter is to be listed by the Deputy Registrar before the Court for further directions. 24 I am unaware of the reason why it has not been possible for a prescribed body corporate to be nominated at the same time as the filing of the draft consent determination orders. While a concurrent determination of a prescribed body corporate and a determination of native title is the preferable course, s 55 of the NTA does allow the determination of a prescribed body corporate to occur separately from the determination of native title by the Court provided that it is done as soon as practicable thereafter. In this case, the orders provide that the determinations of native title will not come into effect until the determination of a prescribed body corporate has been made. There is therefore a considerable incentive for the Bar Barrum claimants to attend to the nomination of a prescribed body corporate as soon as possible. Moreover, if that does not occur, the matter is to be listed by the Deputy Registrar for further directions. In these circumstances, I am satisfied that it is appropriate to make orders giving effect to the substance of the orders sought.
CONCLUSION 25 The achievement of a settlement of a native title claim by agreement is to be encouraged and congratulated. The orders that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of, and is held by, the Bar Barrum People. It is, however, important to record in conclusion that these determinations do not grant native title to the Bar Barrum People, they recognise the native title they have long held in the determination areas. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
SCHEDULE OF PARTIES QUD 6017 of 2001 Respondents Fourth Respondent: TELSTRA CORPORATION LIMITED Fifth Respondent: CONSOLIDATED TIN MINES LIMITED
Congoo on behalf of the Bar Barrum People #3
State of Queensland