Cronin on behalf of the Butchulla People (land & sea claim #2) v State of Queensland

Federal Court of Australia|2019-12-13|Before: O'Bryan J

Introduction 1 This is an application under s 61 of the Native Title Act 1993 (Cth) (Act) for a determination of native title rights and interests on behalf of the Butchulla people. It is referred to as the Butchulla People Land & Sea Claim #2 and relates to areas of land and sea largely adjacent to the southern half of Fraser Island. 2 The application was filed in the Court on 27 November 2009 on the same day as an application in respect of the lands and waters of Fraser Island (hereinafter referred to by its name in the Butchulla language, K'Gari). On 24 October 2014, the Court recognised the Butchulla people as the native title holders in respect of the land and waters of K'Gari: De Satge on behalf of the Butchulla People #2 v State of Queensland [2014] FCA 1132 (K'Gari determination). Their native title rights and interests in relation to that determination have been managed by the Butchulla Aboriginal Corporation RNTBC (BAC) as an agent prescribed body corporate pursuant to s 57 of the Act. 3 The present application was accepted for registration and entered on the Register of Native Title Claims (Register) by the Native Title Registrar from 30 June 2010. The application was notified by the Native Title Registrar in accordance with s 66 of the Act, with the notification period ending on 5 January 2011. The application has been the subject of amendments on: (a) 3 June 2010, before it was entered on the Register; (b) 25 September 2014, following the orders of the Court on 11 September 2014 which changed the description and composition of the claim group, and replaced the then applicant. The amended application was accepted for registration on 11 February 2015; and (c) 25 October 2019, which reduced the area of land and waters the subject of the application pursuant to s 64(1A) of the Act. 4 None of the amendments have triggered a requirement for the application to be re-notified. The application has remained on the Register since 30 June 2010. 5 The applicants are Gemma Cronin, Roderick Tobane, Belinda Barrowcliffe, Bronwyn De Satge, Sandra Page, Lurline Lillian Burke, Shirley Blake, Brett Nutley and Cepha Maria Roma. They are all members of the Butchulla people, on whose behalf the application is made. The Butchulla people are described in the application as the biological descendants of the following people: (a) Father / Mother of Gracie and Maudie Daramboi; (b) Mother of Jessie Aldridge's mother and Lappy; (c) Mother of Charles Richards; (d) Garry Owens; (e) Annie Morris / Anna Gala nee Morris; (f) Granny Polcus / Jenny Brown; (g) Willy Brown / Mamboo / Namboo; (h) George Gundy; (i) Willy Wondunna; (j) Jack Morris; (k) Mary Ann (mother of Susan Rooney); (l) Roger Bennett; (m) Percy Coulson; (n) Mother of John and Rosie Broome; (o) Mother of Clara, Henry, Percy and Lucy Wheeler. 6 The claim group description is in identical terms to the description of the native title holders in the K'Gari determination. 7 The names of the known descendants of the apical ancestors are listed in the genealogical charts prepared by Susan O'Brien and collated in two reports prepared in 2011, and filed in this proceeding on 23 October 2019. 8 The list of respondents to the application is relatively narrow and consists of the State of Queensland (State), the Commonwealth of Australia (Commonwealth), two regional councils (Fraser Coast and Gympie), two utilities companies (Telstra Corporation Ltd and Ergon Energy Corporation Limited) and seven individual respondents. 9 The parties to this proceeding have reached agreement on the terms of a native title determination for areas of the land and sea the subject of the application (the determination area) and a form of orders regarded as appropriate to provide recognition of the native title rights and interests held by the native title claimants, the Butchulla people, in the determination area. The agreement is recorded in a document filed with the Court which has been signed on behalf of each party, and annexes the terms of a draft consent determination of native title (proposed consent determination). 10 The parties have applied to the Court for an order in, or consistent with, the terms of the proposed consent determination pursuant to s 87(2) of the Act. The application is supported by an affidavit of Wati Taraivini Qalotaki, a solicitor employed by Queensland South Native Title Services Ltd in the position of Deputy Principal Legal Officer, affirmed 24 October 2019 and an affidavit of Lurline Lillian Burke, one of the applicants, affirmed 26 October 2019 (and amended in a minor respect on 28 October 2019) and two sets of submissions filed by the applicants (the first addressing the application for a consent determination under s 87(2) and the second addressing the appointment of a prescribed body corporate under s 57).

Relevant principles 11 The parties seek orders by consent from the Court pursuant to s 87(2) of the Act. Sections 87(1), (1A) and (2) of the Act provide as follows: (1) This section applies if, at any stage of proceedings after the end of the period specified in the notice given under s 66: a. agreement is reached between the parties on the terms of an order of the Federal Court in relation to: i. the proceeding; or ii. a part of the proceeding; or iii. a matter arising out of the proceeding; and b. the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and c. the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court. (1A) The Court may, if it appears to the Court to be appropriate to do so, act in accordance with: a. whichever of subsection (2) or (3) is relevant in the particular case; and b. if subsection (5) applies in the particular case - that subsection. (2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing. 12 Accordingly, for the Court to make an order under s 87(2) in, or consistent with, terms agreed between the parties, the Court must be satisfied of the four conditions specified in s 87(1), and must also be satisfied that it is appropriate to do so. The four conditions are: first, the notice period specified in s 66 must have ended; second, agreement must be reached between the parties on the terms of an order of the Court; third, the terms of the agreement, in writing signed by or on behalf of the parties, must be filed with the Court; and fourth, the Court must be satisfied that an order in, or consistent with, those terms would be within the power of the Court: see Munn v Queensland (2001) 115 FCR 109 (Munn) per Emmett J at [4]-[5]. 13 Once those conditions are established, the Court retains a discretion whether or not to make the orders sought. Factors that may be relevant to the exercise of that discretion have been considered in many cases, including Munn at [28]-[33]; Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479 at [23]; and James v Western Australia [2002] FCA 1208 at [4]. Mortimer J recently gave comprehensive consideration to the issue of appropriateness in the context of s 87(1A) in Freddie v Northern Territory [2017] FCA 867 and in Agius v South Australia (No 6) [2018] FCA 358 (Agius). At [63] of Agius, her Honour observed: The Court's function where there is agreement as to a determination of native title, and its discretion, must also be understood in the context of the Native Title Act's emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that: A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. (Emphasis added) 14 Her Honour summarised the role of the Court as follows: (a) The s 87(1A) role is quite different from the Court's role in contested hearings. The Court's focus is on the agreement between the parties: Lander v State of South Australia [2012] FCA 427 at [11]; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (Agius at [62]). (b) Satisfaction as to appropriateness must take into account the nature of the rights sought to be recognised in the determination, having operation against the whole world, including rights in rem. The orders should be clear in their terms and the process one which observes procedural fairness and is supported by the State's agreement that a "credible and rational basis" for the determination has been made out (Agius at [64]). (c) The discretion as to appropriateness is wide but the Court must focus on the individual circumstances of each determination: Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 at [18] (Agius at [65]). (d) The Court must also consider ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and pursue the objectives of those provisions promoting the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible (e.g. Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 per Jagot J) (Agius at [66]). (e) There must be some probative material to allow the Court to satisfy itself that the requirements of s 225 of the Act are met. However, there is no requirement to file all of the material as the determination is based on the agreement entered into on a free and informed basis: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (Agius at [68] to [69]). (f) The Court is not required to conduct an enquiry on the merits, but must still be satisfied that the State made a reasonable and rational decision in entering the s 87 agreement: Brown v Northern Territory of Australia [2015] FCA 1268 at [23]; King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Agius at [70] to [71]). (g) The Court should be satisfied that the State came to the agreement after discharging its public responsibilities to the community it represents, including the claimants: Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 at [16] (Agius at [72]). (h) The public interest in a settled outcome as opposed to an exhaustive contested process is considerable: Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26] (Agius at [74]). (i) The flexibility of a settled outcome allows the State to take into account a wide range of matters including, for instance, the history of dispossession (Agius at [75]).

Evidence relied on 15 In support of the proposed consent determination, the applicants have filed lay and expert evidence to show that the agreement of the parties to the proposed consent determination has a reasonable and rational basis. That evidence comprises: (a) the following expert reports: (i) Anthropological Report, Dr Lee Sackett, December 2011; (ii) Supplementary Anthropological Report, Dr Lee Sackett, May 2015; (iii) Historical Report, Dr Fiona Skyring, March 2011; (iv) Supplementary Historical Report, Dr Fiona Skyring, July 2012; (v) Consolidated Genealogies, Susan O'Brien, November 2011; and (vi) Additional Genealogies: Wheeler Family, Susan O'Brien, November 2011; (b) the following lay affidavits: (i) Affidavit of Barbara May Trevaskis, affirmed 2 July 2014; (ii) Affidavit of Clifford Peter Appo, affirmed 4 July 2014; (iii) Affidavit of Conway Robert Burns, affirmed 19 June 2014; (iv) Affidavit of Darren Gene Blake, 20 March 2013; (v) Affidavit of Dustyn Ian Currie, 2 July 2014; (vi) Affidavit of Edward Christian Claude Doolan, affirmed 20 March 2013; (vii) Affidavit of Fiona-Lee Foley, affirmed 18 November 2011; (viii) Affidavit of Garry Owen Smith, affirmed 21 March 2013; (ix) Affidavit of Ian Wallace Wheeler, affirmed 21 March 2013; (x) Affidavit of Malcolm John Frederick Burns, affirmed 18 November 2011; (xi) Affidavit of Marie Jessie Wilkinson, affirmed 21 March 2013; (xii) Affidavit of Mark Vincent Singho, affirmed 17 June 2014; (xiii) Affidavit of Norman Ross Barney, affirmed 18 June 2014; (xiv) Affidavit of Peter James Martin, affirmed 15 March 2013; (xv) Affidavit of Jan Lorraine Williams, affirmed 18 June 2014; and (xvi) Affidavit of Shawn Wondunna-Foley, affirmed 18 November 2011; (c) the following outlines of evidence prepared for the On-Country Evidence Process (OCEP): (i) Outline of evidence Dustyn Ian Currie, dated 23 September 2016; (ii) Outline of evidence Gemma Marie Cronin, dated 23 September 2016; (iii) Outline of evidence Glen Allan Miller, dated 23 September 2016; (iv) Outline of evidence Norman Ross Barney, dated 23 September 2016; (v) Outline of evidence Shawn Wondunna-Foley, dated 23 September 2016; and (d) the consolidated transcript of the OCEP (12 to 15 December 2016) which records unsworn evidence from: (i) Conway Burns; (ii) Glen Miller; (iii) Gemma Cronin; (iv) Dustyn Currie; and (v) Norman Barney. 16 The expert reports and the lay affidavits were all filed and relied upon in the K'Gari determination, other than the 2015 supplementary report of Dr Sackett which deals with connection to places the subject of the present application. 17 The OCEP material post-dates the K'Gari determination. The OCEP was an extra-curial process agreed to by the applicants, the State and the Commonwealth in which certain claimants gave testimony on the basis that they would be prepared to give the same testimony in court. Witnesses were not sworn in. However, their testimony was given in the usual format of evidence in chief followed by cross-examination by the respondents' representatives. The applicants, the State and the Commonwealth have agreed to the filing of the transcript of the OCEP in these proceedings. 18 In the K'Gari determination, Collier J referred to and summarised a significant part of the expert reports and lay affidavits referred to above and which were relied on in that determination. In considering the laws and customs of pre-sovereignty Butchulla society, her Honour observed (at [45]) that Dr Sackett had reported that: • Butchulla People traditionally believed in a supreme being, namely a sky-god, although many claimants with whom Dr Sackett spoke were Christians. • Butchulla People believed in totems. Anthropologist Norman Tindale wrote that in Butchulla society, totems were inherited through the mother, although the totem of the father was treated with respect. Totems were animals including dolphins, ducks, kites, honey bees and carpet snakes as well as plants including the cypress pine tree. There was some inconsistency in research as to whether totems could be eaten. • Circumcision or knocking out of teeth of young men was not practised, although other initiation rites were practised in relation to young men including trial by fire. • Young women on reaching puberty would be taken away into the bush, and ritually instructed in relation to marriage and mating. • Children joined the land holding units of their fathers. • A person is a Butchulla person because they are born as a Butchulla person. Many claimants referred to it as "bloodline". • Permission was required from Butchulla People before persons from other countries accessed Butchulla land. Failure to seek permission was tantamount to trespass, and traditionally was punishable by, for example, spearing. Dr Sackett noted that the concept of requesting permission to enter Butchulla land was maintained by current members of the claim group. • Kin relationships guided interpersonal behaviour such that, for example, certain relationships were within proscribed boundaries of consanguinity and that marriage within such relationships was forbidden. 19 Her Honour also summarised the opinion of Dr Sackett regarding the Butchulla people's connection with K'Gari from sovereignty to the present (at [49]-[53]): Continuity of connection from sovereignty to the present 49. This is clearly a critical aspect of the application before me. In considering this issue, Dr Sackett also took into account Dr Skyring's report, factors which have affected the group, group members' interaction with one another, and members' interaction with country. 50. First, Dr Sackett's evidence was that the claimants acknowledged and observed a body of law and custom as they relate to possession, occupation, use and enjoyment of lands and waters, having their roots in the normative system existing at sovereignty (at paragraph 992). While the group no longer practised "increase" ceremonies, nonetheless members interviewed by Dr Sackett averred that they shared Butchulla lands with the overseeing and protecting spirits of Butchulla dead (paragraph 993). Identification as Butchulla by descent from apical ancestors was a strong component of membership of the claim group. Dr Sackett gave evidence that the fundamentals of descent-based membership and country links continued, as did the concept of the necessity of permission to access and exploit Butchulla lands. Further, Dr Sackett gave evidence that elders continued to guide decisions regarding Butchulla country, and that this seemed in line with traditional practice (paragraph 993). 51. Second, Dr Sackett had earlier observed in his report that descendants of a number of apical ancestors had maintained little or no physical connection with the area of the claims, whereas descendants of other apicals had maintained relatively solid physical connection to the area of claims (in particular the descendants of Garry Owens and Willy Wondunna). The dislocation of some Butchulla people from their country resulted from a number of causes including: • the settlement of non-Aborigines in the area beginning in the 1840s, accompanied by increasing competition for resources and violence between indigenous and non-indigenous people; • the gradual incorporation of the local population into the pastoral and timber industries as unskilled labour; • the establishment of a mission on Fraser Island in 1897; • the removal of many local indigenous people to Yarrabah in 1904 as well as other removals (paragraph 996). 52. In light of this dislocation Dr Sackett opined that it was not surprising that relatively few members of the Butchulla People had been able to maintain ongoing physical connection with their country. 53. Overall, however, Dr Sackett was satisfied that fundamental laws and customs continued to be acknowledged by Butchulla claimants, which meant that crucial aspects of Butchulla society were transmitted from generation to generation. 20 Her Honour also referred to the lay evidence from members of the Butchulla people and concluded (at [55]): The material in these documents attests to the basis of the witness' identification as a member of the Butchella people and of their connection to the claim area under their traditional laws and customs. They are compelling reading. All witnesses deposed as to the aspects of Butchulla culture they had learned from elders, recounted traditional stories, and gave evidence of sacred places, totems and rules. Some of this evidence is relevant to areas outside the determination area, in particular on the mainland, but which the witnesses depose is also Butchulla country… 21 As noted above, after the K'Gari determination testimony was given during the OCEP at the Mary River, south of Tiaro, Tuan Creek, Eli Creek, Wongi Waterholes, the Burrum River and Toogoom. Primary amongst the laws and customs of the Butchulla people, and re-told during the OCEP, is the story of Yindingie and Princess K'Gari being sent to earth by Birral (or Beeral), and K'Gari laying down and becoming Fraser Island. Yindingie and K'Gari created the landscape and everything in and upon it. The travels of Yindingie across the landscape are recorded natural features, including for instance, Yindingie's footprints in the waters at Dayman Point. That story was retold by Conway Burns at the beginning of the OCEP: CONWAY BURNS: My name is Conway Burns. I'm a Butchulla man, a Butchulla descendant. Yes, I'm-just like to talk to youse about what this place means to us here, especially with K'Gari, and at a high point here, the corroboree grounds. Way back in the Dreamtime, the Stories, the First Creation Story is about K'Gari, and K'Gari is a female white spirit who was an apprentice who come down with Yindingie, Yindingie being the supreme Serpent, the left hand of God, which is Birril, which is a-a white spirits. So she's a female white spirit and a male white spirit come down. He created-helped to create the land. She sort of assisted along. She was working so hard that Yindingie noticed. She said-he said to her, "Can you go over and lay on these rocks?"-there's rocks on the eastern side-and she said, "Yeah, okay". She laid down, had a sleep, and woke up and-with awe and look-looked out, and all she could see was a beautiful bay and a beautiful mountain over further and a beautiful river. And she said, "It's such a beautiful place. Can I stay?" And Yindingie said, "You can't. You can't stay here because you're a-you're a spirit". So she begged and pleaded and-until she got her own way. And he said then, "You go back over and lay on those rocks". So she laid on the rocks like this, looking towards the land, and he said, "I'll change you into an island". He said, "You can't stay here as a spirit, so I'll change you into a island". So he changed her into an island and put clothes on her, which were the trees, and all the lakes on the island are her-are her eyes, that looks back up in the heavens where she come from, and all the streams and the creeks are her whispering voices, and Yindingie put on animals on her to-so she-and taught them the art of procreation so that she would never be lonely. And then, once Yindingie finished creating all the lands and created her, that gave her the name K'Gari, which means beautiful place. So he then rested at place on the western-on the eastern side, called Yidni (sic) (see the correct spelling is 'Yidney') Rocks, hence the name Yindingie, which means Rainbow Serpent. And when he rested, he left-he then got up and left to Moon Point, which is-if you come over this way, you can see, directly in this line, the point there, the end of the island- edge of the island. Can you see? He then left from there to a spot down here what Nanna Joyce was talking about, just there, you can see the building here, left from there. From there-to there to a place Tinnanbar, down the Coral Wing (sic) (see the correct spelling is 'Korrawinga') to Straits, and then left up onto a mountain that we call Bauple, and then turned around and said, "This is all your country", and then left up in the sky. And that's why we always gathered here, because-with our corroboree grounds, to speak about our beautiful country, and because of the special site. MR McAVOY: Can you just say where "here" is? CONWAY BURNS: Here is Urangan, Dayman Point, which is-"urangan", in our lingo, means dugong, place of dugongs, which they do live out here. And you spin that around back the front, nagnaru, which means "our country". And that's the Story about here that ties in with K'Gari to here to Bauple. I always refer to that Story, because that's how it all began for our people here. Okay? MR McAVOY: Just a quick question for Conway. When you said Yindingie came here, did you mean to Dayman Point? CONWAY BURNS: Yes. MR McAVOY: And somewhere else? CONWAY BURNS: Yes, Tinnanbar, which is down the Coral Window Straits, Great Sandy Straits, which is down further, you'll probably visit later on. It's a place called Tinnanbar but in our lingo means-it's properly pronounced as Gjinang-Djaa, which means footprint. So that's another area down further. MR McAVOY: And did Yindingie leave something behind here? CONWAY BURNS: He left-he left his footprint in the-in the Coffee Rock, down the bottom here, beside the aquarium. Every now and then it-it is exposed from the-from the movement of the sand. 22 Dayman Point and Tinnanbar are both within the claim area on the mainland adjacent to the Great Sandy Strait, while Yidney is located on K'Gari and within the K'Gari determination area. 23 Ms Gemma Cronin gave testimony at a site near the Mary River, in Maryborough, about the dreaming line involving the Crane Mundee and the Ibis Bunda: GEMMA CRONIN: … This is a major Dreaming line and it runs from Bauple Mountain across to here and then to Urangan, and it's-they're our moiety and they're totemic creatures. It's a story of two totem Creation ancestors, and they-so, all-we don't have any hard stone to make-to make artefacts with on the island or even-it's a really sandy area and it's not-it's all sort of soft stone. It's not the nice hard stone that you need. So, all of our stone that we built-we make tools with-made tools with came from Bauple Mountain. That's where the hard stone is. So, in the Dreaming that the crane Mundee, the crane was a really good toolmaker, and he was the one who was in charge of making tools. And he had a camp further south of here, and he-one day an Ibis came and visited him-and the crane is one of our moieties, and the Ibis is one of our moieties. So, the crane came and visited the-I mean the Ibis, the Bunda, came and visited Mundee and he had his wives with him. And he wanted to get some tools off Mundee but Mundee wouldn't give him any. He only had so many. And he showed them to him and-but he said he'd have to make them for him, he couldn't give them to him right now. He'd have to make some new ones for him. So, they ate together and then Bunda, this Ibis told Mundee that he was going, he was leaving, so they left but they didn't go very far. Then they hid in the bush and they watched Mundee, and when he went to sleep, Bunda's wives crept back into the camp and they-they stole all of the artefacts and all of the stone tools. And they stole the stone tools and they took off and they started heading towards Urangan. And Mundee woke up not long after they stole the tools. He woke up and went to do something and then he realised all his-everything was gone, you know, axe heads. So, then straight away he got guilty because he realised he'd been taking a lot of-a lot of stone from the mountain and he hadn't really spoken to the-to the spirit up there, the guardian of that place in Melong. And he went back up and he realised he might have offended him and maybe that's why his tools were gone. So, he got some sugar bag honey and he went back and he fed it to the-he gave it to the Melong and he put it down in front of the cave, his little cave there, and he put it down in front of the cave and he called out and he was saying he was sorry if he offended him because he-he didn't ask to take as much stone as he had taken. And-but the Melong came out and told him to come and sit at his fire with him, so he sat at his fire, and then in the smoke he saw the-he showed him the smoke the Bunda, the Ibis, and his wives had stolen his tomahawks, his stone heads, so-so then the Mundee jumped up and he grabbed his spear and his big killing boomerang and his burrakan, and he came running down and chasing-he's chasing the Ibis and the Ibis is moving slow. He's got four wives and heavy stones to carry, so he caught him up and when he caught up with him it was here. And this was a shallow creek and the Ibis was on this side and the crane was on that side, and he yelled out and he was challenging the Ibis to a fight for stealing his stones. And he was waving his boomerang and getting ready to launch his spear at him. And the women got scared. They were halfway across this creek and he-and the Bunda was on this side, but the women were only halfway across, and they got scared and they-they tipped out all the-all the stones they were carrying in their dilly bags. And they tipped them out into the creek, and when they tipped them out the stones transformed into the island, Baddow Island. And the crane kept singing and calling out, and as he was singing and calling out, then the Melong made the rain come and the rain got deeper and the water got faster and faster and deeper. And the crane was trying to come back, but-I mean, the Bunda, the Ibis wanted to go back and fight but he couldn't get back across. He was on this side. And that's the formation of this. Then his wives came and joined him and then they went on and went to Urangan, and that's it. MS QALOTAKI: So, you're pointing across from us towards the river and the island across. Could you show us where Baddow Island is? GEMMA CRONIN: That's Baddow Island there. It goes to there and some a bit here. That's the island. 24 In addition to the oral stories connecting the Butchulla people to their country, there were many examples given during the OCEP of lived experience throughout the claim area in accordance with traditional laws and customs. 25 Dr Sackett's 2015 supplementary report proceeded on the foundations laid in his 2011 report concerning K'Gari. In the executive summary to the 2015 report, Dr Sackett expressed the following opinions: Society and Succession 10. In my Butchulla Native Title Claims: Anthropologist's Report, I considered what some have called 'the society question'. I…arrived at the conclusion that the Butchulla were part of the wider Kabi Kabi society. "Put another way, by law and custom, Butchulla people held certain areas and, by the same law and custom, others held neighbouring areas in the region" (Sackett 2011:¶444-445). By this same law and custom, they might succeed to one another's areas. 11. Although there are no reports of succession in the Butchulla area, there most certainly are such reports from elsewhere in Aboriginal Australia. Succession has often been noted in the context of claims made in the Northern Territory under the Aboriginal Land Rights (NT) Act. Indeed, some 30% of the first 59 such claims treated and recognised aspects of succession. In reading the reports on these claims, it immediately becomes apparent that succession can proceed along different paths in different groups. 12. It should not be thought that succession was/is something exclusive to peoples and lands of the Northern Territory. Both Akerman (1995:99) and Kolig (1978:55-56) mention it in relation to different peoples and lands of the Kimberley. Sutton and Rigsby (1982:161-165) mention it in relation to peoples and lands of Cape York. 13. It seems to me that we see threads of Butchulla succession to portions of the mainland in (1) what claimants said about their country and (2) what they related, often at the same moment, about the founding of their country - particularly in the stories they tell about the acts and activities of the Creator Yindingie. 14. At one level, the Yindingie stories link specific places on the Island and the mainland. At another level, the Yindingie stories make the Island, parts of the mainland and the waters and islands between them literally one - one Butchulla country. At the ultimate level, the Yindingie stories deny succession ever occurred - by writing it out of the oral record. 15. It is my view that the specifics and processes of Butchulla succession to some mainland areas went unrecorded as such specifics and processes only become evident through close study. And while Butchulla people and Butchulla country have been mentioned in notes and reports from as early as 1842, they have not been the subject of close anthropological study until recent times. The Butchulla and Mainland Areas 16. Evidence of Butchulla visiting, if not residing on, mainland areas dates from the earliest moments of effective sovereignty. The evidence continues across the intervening decades. 17. The evidence is by no means uniform across the mainland area being claimed by the Butchulla, however. It for the most part relates to country running from the Hervey Bay area in something of an arc around to the area of Maryborough. 18. As well, there is evidence of claimants' ancestors and claimants engaging in various ways with mainland areas and places. In this, we see Butchulla Relating to the Spirits of the Country, Camping and Remembering Ancestral Camping Places on Country, Hunting and Gathering, Carrying the Knowledge of Special Places, Participating in Corroborees, Commemorating Ancestral Burial Places, and Caring for Country. 19. If the list of places/areas where Butchulla exercised/exercise rights, interests and responsibilities is held against the list of places for which there is evidence of Butchulla physical connections on the mainland, the one, with a few exceptions, replicates the other. 20. In my view, there is strong support for Butchulla connection to and ownership of mainland country extending from Dundowran Beach/Eli Creek/Point Vernon/Pialba around to Maryborough. The Butchulla and Island and Bay Areas 21. As is the case with respect to Butchulla people engaging with mainland places and areas, much of the evidence regarding Butchulla activities in and on the waters and islands of the area comes from claimant recollections of their more immediate antecedents' activities and statements about their own activities. 22. The evidence in relation to Butchulla engaging with inshore waters is strongest in relation to places running from Eli Creek, Gatakers Bay, Point Vernon, Pialba, Scarness, Hervey Bay, Urangan, Pulgul Creek, Booral, River Heads, the Mary River to Maryborough. 23. In Great Sandy Strait, there is good evidence regarding ongoing Butchulla connections to Round Island, Big Woody Island and Little Woody Island (and to a lesser extent to nearby Picnic Island). Claimants relate how their ancestors and they have visited and exploited these islands and surrounding water across the decades. 26 It can be seen that Dr Sackett considered that the Butchulla people were part of the wider Kabi Kabi society and, by the traditional law and custom observed by members of that society, Butchulla people held certain areas and others held neighbouring areas in the region and one might succeed to the other's areas. Whilst Dr Sackett did not consider that the early ethnography demonstrated that Butchulla territory at sovereignty took in much of the mainland, he expressed the opinion that the evidence supports a finding that the Butchulla people acquired rights and interests in mainland territory through a process of succession under traditional law and custom. I return to that aspect of the evidence below.

Statutory conditions - s 87(1) 27 I am satisfied that the four conditions specified in s 87(1) have been met in this case. 28 First, the application was notified by the Native Title Registrar pursuant to s 66 of the Act. The notification period expired on 5 January 2011. Accordingly, this application is being made after the end of the period specified in the notice given under s 66. 29 Second, an agreement has been signed on behalf of all of the parties to the application recording the parties' agreement on the terms of an order of the Court in relation to these proceedings, being the proposed consent determination. 30 Third, the agreement has been filed with the Court. 31 Fourth, I am satisfied that an order in, or consistent with, the terms of the proposed consent determination would be within the power of the Court. In that respect, I have given particular consideration to the following four matters: (a) whether the applicants have been authorised to make the native title application, and seek the proposed consent determination, on behalf of persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, in accordance with s 61 of the Act; (b) whether the proposed consent determination sets out the details of the matters mentioned in s 225, as required by s 94A of the Act; (c) whether the proposed consent determination complies with the requirements of s 61A of the Act; and (d) whether the proposed consent determination includes the matters required by s 56 (which deals with holding the native title on trust) and s 57 (which deals with the non-trust functions of prescribed bodies corporate), as required by s 55 of the Act.

Authorisation of the applicants 32 In relation to authorisation of the applicants, s 61(1) of the Act permits an application for a native title determination to be made by a "person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group". In the case of a claimant application, s 62A provides that authorisation has the consequence that the applicant may deal with all matters arising under the Act in relation to the application. Proper authorisation is therefore fundamental to the institution and maintenance of a native title claimant application under s 61: Strickland v Native Title Registrar [1999] FCA 1530; 168 ALR 242 at 259-260. 33 The evidence shows that the native title claim group specified in the application (the Butchulla people) has authorised the applicants to make the application and to apply for the consent determination, consistently with ss 61(1) and 62A of the Act. In her affidavit, Ms Qalotaki deposed that on 12 October 2019 an authorisation meeting was convened for the claim group and held at the Mantra Hervey Bay Resort, Buccaneer Drive, Urangan, Hervey Bay. The purposes of the authorisation meeting were for the claim group to: (a) consider and authorise the applicants to make amendments to the application so as to ensure that the application is consistent with agreed positions on tenure and extinguishment and can be in proper, final form before the Court in readiness for the consent determination hearing; and (b) consider and authorise the applicants to consent to the s 87 agreement that has been filed with the Court. 34 Ms Qalotaki deposed that she attended the authorisation meeting in her capacity as solicitor for the applicants and that the claim group authorised the applicants to amend the application and to consent to the s 87 agreement for filing in the proceedings.

Section 225 requirements 35 Section 94A requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225. Section 225 defines a "determination of native title" as follows: 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 and 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. 36 I have examined the proposed consent determination. I am satisfied that each of the matters referred to in s 225 is appropriately articulated in those orders and the rights and interests so described are recognisable by the common law of Australia. The proposed consent determination is largely in the same format as the K'Gari determination. I note the following matters in particular: (a) The determination area is set out in paragraph 5, referencing the land and waters described in Schedule 4 and depicted in the maps attached to Schedule 6. (b) A description of the proposed native title holders is set out in paragraph 7, referencing Schedule 1. (c) A description of the nature and extent of the native title rights and interests in relation to the determination area is set out in paragraphs 8, 9, 10 and 11 of the proposed orders, referencing Parts 1, 2, 3 and 4 of Schedule 4 respectively. Those paragraphs, and paragraph 13, identify 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. Paragraph 8(a), referencing the land in Part 1 of Schedule 4, confers exclusive rights. Paragraphs 8(b), 9, 10 and 11 do not confer exclusive rights. (d) A description of the nature and extent of other interests in relation to the determination area is set out in paragraph 15, referencing Schedule 2. (e) The relationship between the native title rights and interests and the other interests is set out in paragraph 16. 37 Paragraphs 1 to 3 of the proposed consent determination require some additional explanation. Those paragraphs are in the following form: 1. There be a determination of native title (the "Determination") in the terms set out below for the Determination Area other than for Lot 2 on Plan AP6551 and Lot 3 on Plan AP6551. 2. Subject to paragraph 3 of this Order, on 11 December 2020, there be a determination of native title (also, the "Determination") in the terms set out below for Lot 2 on Plan AP6551 and Lot 3 on Plan AP6551. 3. The Applicant and the State of Queensland have liberty to apply to the Court on or before 13 November 2020 in relation to paragraph 2 of this Order. 38 It is proposed that a determination will be made with respect to the whole of the determination area on 13 December 2019, except Lots 2 and 3 on AP6551. A further determination will be made in relation to Lots 2 and 3 on 11 December 2020, subject to any further application which may be made by the applicants or the State on or prior to 13 November 2020. 39 By way of background, at a late stage the State became aware that Lots 2 and 3, which had been identified as areas where exclusive native title was to be recognised, were the subject of a permit to occupy issued on 1 October 2002 in favour of the Fraser Coast Shooting Complex Association Inc. The activities of the Association are conducted on adjacent land and the permit in respect of Lots 2 and 3 provides a safety buffer. The State considers that the area comprising Lots 2 and 3 is necessary in order to accommodate requirements under the Weapons Act 1990 (Qld) for the safe operation of the activities conducted by the Association. 40 The applicants and the State consider that the permit to occupy is a low impact future act pursuant to s 24LA of the Act, to which the non-extinguishment principle applies. However, an immediate determination of native title conferring exclusive rights over the area would cause a public safety problem if the Association were to continue its activities. To resolve that difficulty (which was identified only recently), the parties have agreed that an immediate determination of native title in respect of the whole of the determination area except for Lots 2 and 3 will be made, and a further determination of native title will be made on 11 December 2020 without further order of the Court. The orders are designed to give the Butchulla people certainty that a determination of native title recognising their native title rights and interests in relation to Lots 2 and 3 will be made within 12 months, while allowing the Association to continue to operate by utilising the existing permit to occupy until the determination in respect of Lots 2 and 3 is made. This will give the relevant parties a period of 12 months to discuss and negotiate a suitable arrangement with respect to that land.

Section 61A requirements 41 Section 61A(1) provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. Based on the records of the National Native Title Register kept under Part 8 of the Act, I am satisfied that there is no determination of native title in existence over the area the subject of this proposed consent determination. 42 Section 61A(2) provides that a claimant application must not be made in relation to an area in respect of which a previous exclusive possession act was done, save in respect of such acts which are to be disregarded under ss 47, 47A and 47B. Section 61A(3) provides that a claimant application must not be made in which any of the native title rights and interests claimed confer rights to the exclusion of all others in relation to an area in respect of which a previous non-exclusive possession act was done, save in respect of such acts which are to be disregarded under ss 47, 47A and 47B. I am satisfied as to these requirements by virtue of the parties' consent to the determination to be made.

Prescribed body corporate 43 Section 56(1) provides that one of the determinations that the Court must make is whether the native title is to be held in trust and, if so, by whom. Section 56(2) provides that, in making that determination, the Court must take the following steps: (a) first, it must request a representative of the persons it proposes to include in the determination as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by: (i) nominating, in writing given to the Court within a specified period, a prescribed body corporate to be trustee of the native title; and (ii) including with the nomination the written consent of the body corporate; and (b) second, if the common law holders give the nomination within the period, the Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and (c) third, if the common law holders do not give the nomination within the period, the Court must determine that the rights and interests are to be held by the common law holders. 44 Section 57(2) provides that if the determination is that the rights and interests are to be held by the common law holders, the Court must take the following steps in determining which prescribed body corporate is to perform the functions mentioned in subsection (3) (being functions given to the prescribed body corporate under the Act or regulations): (a) first, it must request a representative of the common law holders to: (i) nominate, in writing given to the Court within a specified period, a prescribed body corporate for the purpose; and (ii) include with the nomination the written consent of the body corporate; (b) second, if a prescribed body corporate is nominated in accordance with that request, the Court must determine that the body is to perform the functions; (c) third, if no prescribed body corporate is nominated, the Court must (in accordance with the regulations) determine which body corporate is to perform the functions. 45 In this case, the applicants have proposed that the Court make orders in the form of paragraphs 17 and 18 of the proposed consent determination determining that native title is not to be held in trust and that the Butchulla Native Title Aboriginal Corporation ICN 9145 (BUNTAC) be the prescribed body corporate for the purposes of s 57(2) of the Act. I am satisfied that it is appropriate for the Court to make those orders for the following reasons. 46 First, by her affidavit affirmed 26 October 2019, Ms Lurline Lillian Burke has formally nominated BUNTAC to be determined under s 57(2) of the Act as the agent prescribed body corporate to perform the functions in ss 57(3) and 58 of the Act in relation to the proposed determination. The evidence shows that Ms Burke is one of the common law holders of the native title and is an initial member of BUNTAC. A meeting of the claim group held in Hervey Bay on 31 August 2019 resolved to nominate BUNTAC to the Court to be the agent prescribed body corporate in relation to the proposed determination, and authorised Ms Burke to make the nomination to the Court. 47 Second, Ms Burke's affidavit exhibits a copy of the written consent of BUNTAC to its nomination under s 57(2) of the Act. 48 Third, BUNTAC is a prescribed body corporate. Section 59 of the Act provides that regulations may prescribe the kinds of body corporate that may be determined under s 57(2)(b). Regulation 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) sets out the requirements for a body corporate to be a prescribed body corporate for that purpose. Regulation 4 provides as follows: 4 Prescribed bodies corporate (Act s 59) (1) An Aboriginal and Torres Strait Islander corporation is prescribed for section 59 of the Act if it is registered for the purpose of being the subject of a section 56 or 57 determination. (2) An Aboriginal and Torres Strait Islander corporation is taken to be registered for the purpose of being the subject of a section 56 or 57 determination only if: (a) the purpose of becoming a registered native title body corporate is set out in the objects of the corporation; and (b) all members of the corporation are: (i) persons who, at the time of making of the section 56 or 57 determination, are included, or are proposed to be included, in the native title determination as native title holders; or (ii) persons to whom the persons mentioned in subparagraph (i) have consented; and (c) at all times after the section 56 or 57 determination is made, all members of the corporation are: (i) persons who have native title rights and interests in relation to the land or waters to which the native title determination relates; or (ii) persons, or a class of persons, to whom the persons mentioned in subparagraph (i) have consented; and (d) the corporation meets the Indigeneity requirement mentioned in section 29-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006. 49 Regulation 3 stipulates that the expression "Aboriginal and Torres Strait Islander corporation" has the same meaning as in the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act), which is a corporation registered under that Act. 50 The evidence shows that BUNTAC meets those requirements. In that regard: (a) Ms Burke's affidavit exhibits a copy of the certificate of registration of BUNTAC issued by the Registrar of the Office of Indigenous Corporations which shows that the corporation was registered under the CATSI Act on 9 October 2019. (b) The purpose of BUNTAC becoming a registered native title body corporate is set out in the objects of the corporation within its Rule Book. (c) The current members of BUNTAC are included within the description of the Butchulla people in the proposed consent determination. (d) The criteria for future membership of BUNTAC is that the person is a member of the Butchulla people as defined in the proposed consent determination. (e) As a result of paragraphs (c) and (d), all members of BUNTAC can only be Butchulla people, which ensures that the indigeneity requirement under s 29-5 of the CATSI Act is met.

Exercise of discretion - s 87(2) 51 As noted earlier, once satisfied that the conditions in s 87(1) have been met, the Court has a discretion whether or not to make the orders that are sought by consent. In the present case, I am satisfied that it is appropriate to make the consent determination for the following reasons. 52 First, the agreement that has been reached between the parties is the culmination of a lengthy period of investigation and negotiation. 53 Second, all parties have been legally represented and there is no reason to doubt that the parties have made an informed decision to resolve the application by agreement. 54 Third, the State, in its role of protecting the interests of the community generally, has been an active participant in the investigation and negotiation of the proposed consent determination. 55 Fourth, the applicants have filed lay and expert evidence which together shows that the agreement of the parties to the proposed consent determination has a reasonable and rational basis. One aspect of that evidence should be noted. As stated earlier, Dr Sackett considered that the early ethnography did not demonstrate that Butchulla territory at sovereignty took in much of the mainland, but in his view the evidence supports a finding that the Butchulla people acquired rights and interests in mainland territory through a process of succession in accordance with traditional laws and customs. In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, the majority decided that native title rights and interests, as defined in s 223, must be founded upon traditional laws acknowledged and customs observed by a body of people, and that both laws and customs must have had a continuous existence and vitality since sovereignty (Gleeson CJ, Gummow and Hayne JJ at [47]). In Croft on behalf of Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; 325 ALR 213, Mansfield J observed at [717]: A society for the purposes of native title jurisprudence is merely a "body of persons united in and by its observance and acknowledgment of a body of law and customs": Yorta Yorta at [52] per Gleeson CJ, Gummow and Hayne JJ. If there are two groups that share a common or closely similar body of law and customs, then they are one "society" for the purposes of native title. It is certainly possible for one group within a single society, in respect of land formerly possessed by another group within that society, to have obtained rights and interests in that land which are rights and interests possessed under traditional laws and customs. There is no reason why a society's traditional laws and customs could not provide for such "transmission" or "succession" between groups in particular circumstances. 56 By their agreement to the proposed consent determination, the parties can be taken to have accepted that the evidence establishes that, by the traditional laws acknowledged and customs observed by a society of which the Butchulla people formed part, the Butchulla people succeeded to the rights and interests over the land and waters the subject of the proposed consent determination. In that way, there has been the required continuous connection with the land and waters, and the rights and interests over the land and waters the subject of the proposed consent determination are possessed under the traditional laws acknowledged and customs observed by the Butchulla people. Having regard to the evidence that has been filed, I am satisfied that there is a proper basis for the parties' agreement.

Conclusion 57 In conclusion, I am satisfied that the proposed consent determination should be made. The native title rights and interests of the Butchulla people in the areas of land and sea that are the subject of the application should be formally recognised in the proposed consent determination under the Act. 58 It is appropriate to record that this determination of native title does not create native title in the determination area. Rather, it marks the recognition, by the Australian legal system, of the Butchulla people's long held native title in this land which has existed, according to the traditional laws and customs of the Butchulla people, since long before this determination today and before the time of British sovereignty. 59 I commend the parties and their representatives for bringing this matter to a conclusion by way of agreement. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.

(Cth), the Telecommunications Act 1975(Cth)

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

(Cth), the Telecommunications Act 1991(Cth)

Native Title Act 1993(Cth)ss 56(1), 56(2), 57(2), 59, 61A(1), 61A(2), 61A(3), 87(1), 87(1A), 87(2), 94A, 225

ehalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 Strickland v Native Title Registrar [1999] FCA 1530; 168 ALR 242 Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993

At a glance

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