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[2014] FCA 231
Federal Court of Australia
2014-03-18
Logan J
Original judgment source is linked above.
THE APPLICATION OF SECTION 87 to the GUDJALA people claims 35 The requirements of s 87 of the Act have been satisfied in the present case. In particular: (a) The period specified in the notice given under s 66 closed application on 13 March 2006 for Gudjala People (QUD 80/2005) and 2 February 2011 for Gudjala People #2 (QUD 147/2006). (b) The parties have reached agreement as to the terms of determinations of native title (s 87(1)(a)(i)). (c) The parties have recorded their agreement in short minutes of consent (s 87(1)(b)). (d) An order in terms of or consistent with the short minutes of consent would be within the Court's power (s 87(1)(c)) because: (i) the applications are valid and were made in accordance with s 61 of the Act; and (ii) the applications are for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a)). The short minutes comply with s 94A and s 225 of the Act (s 87(1)(c)); and (e) It is appropriate that the Court make the orders sought because: (i) all parties are legally represented; (ii) it is consistent with objects in the Act that issues and disputes concerning native title are resolved by mediation; (iii) the State of Queensland has taken a real interest in negotiating the consent determination. In participating in these negotiations, the State of Queensland, acting on behalf of the general community, having had regard to the Act's requirements and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances; (iv) the connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determinations; (v) the requirements of ss 56, 94A and 225 of the Act are satisfied; and (vi) the proposed determinations are unambiguous and certain as to the rights declared.
satisfying section 57 of the act 36 Under s 55 of the Act, the Court is required, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by s 56 and s 57 of the Act. They respectively relate to holding the native title on trust or otherwise and if not held on trust, the non-trust functions of the prescribed body corporate. 37 As to the proposed determinations, Ms Cheryl Ann Thomson has filed on 5 March 2014 that the native title is not to be held on trust and the Ngrragoonda Aboriginal Corporation is to be the prescribed body corporate under s 57 of the Act. The Ngrragoonda Aboriginal Corporation was registered on 8 November 2013 under the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth). It will perform the functions mentioned in s 57(3) of the Act. 38 The Court notes that Ms Cheryl Ann Thomson has further filed on 5 March 2014 a Notice of Nomination and Consent of Ngrragoonda Aboriginal Corporation as the Prescribed Body Corporate, which satisfies the requirements of s 57(2) of the Act. 39 The Ngrragoonda Aboriginal Corporation satisfies the requirements of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) because: (a) it is an Aboriginal and Torres Strait Islander Corporation: reg 4(1)); (b) its purpose, as set out in its Rules of the Corporation, satisfy reg 4(2)(b); (c) the eligibility requirements of the Rules of the Corporation operate to ensure that all members of the corporation at the time of the determination are included or proposed to be included in the determinations as persons who have native title rights and interests in relation to the determination area: reg 4(2)(b). 40 Finally, and at the risk of repetition, it needs to be understood that agreements of the kind that have brought about today's hearing and determinations do not just happen. They involve co-operation by all of the parties in the administration of justice, careful attention by them and their advisers to the requirements of the Act in relation to the proof of native title, related effort in the gathering of relevant evidence and the ready making of concessions as to whether on the evidence native title can be proved. They also involve the regular review by the Court at regional directions hearings, and in the intervals in between by the Court's registrars, to ensure that an application is both prosecuted with due diligence by an applicant and not unreasonably delayed by a respondent in its progress towards a hearing like today or, if needs be, a contested hearing. Ensuring that is important in any litigation but is especially so in a proceeding under the Act which serves a wider public interest recognised in the preamble and which, through the allocation of judicial and other court resources and via the provision of various forms of legal aid, involves a considerable investment of public money. 41 For the reasons given, the Determinations are now made. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.
Dodd on behalf of the Gudjala People Core Country Claim #1
State of Queensland
Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 cited Fisher on behalf of the Ewamian People #2 v State of Queensland [2013] FCA 1249 cited Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800 cited King v Northern Territory of Australia [2011] FCA 582 followed Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 followed Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 considered Moses v State of Western Australia [2007] FCAFC 78 considered Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 considered Smith v State of Western Australia (2000) 104 FCR 494 considered Wik Peoples v Queensland (1996) 187 CLR 1 cited
Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 3) [2014] FCA 231 CORRIGENDUM 1. In paragraph 5 of the Reasons for Judgment, in the first sentence the words "Western Queensland" should read "Northern Queensland". 2. In paragraph 5 of the Reasons for Judgment, in the second sentence, the word "Finders" should read "Flinders". 3. In paragraph 5 of the Reasons for Judgment, in the last sentence, the word "applicants" should read "applicant". 4. In paragraph 26 of the Reasons for Judgment, the word "Leichardt" in this paragraph should read "Leichhardt". 5. In paragraph 26 of the Reasons for Judgment, in the second sentence, the word "Gilbery" should read "Gilbert". 6. In paragraph 28 of the Reasons for Judgment, in the last sentence, the word "Warungu" should read "Warrungnu". 7. In paragraph 28 of the Reasons for Judgment, in the second sentence, the word "northern" should be deleted and the sentence should read "ceremonial exchange with their neighbours the Gugu-Badhun, Wulguru". I certify that the preceding seven (7) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Logan.
REASONS FOR JUDGMENT 1 Reasons for judgement in respect of consent determination in a native title application can have about them a similarity of language that might lead the uninformed to think that there is something glib or routine about them. Nothing could be further from the truth. All that is routine is the application of by now well settled principles the correctness of which, once explained in earlier authority, is not enhanced by paraphrasing. What is never routine are the customs, usages and affinity for particular land and the remarkable cherishing and preservation of them over so many generations, notwithstanding the impact of European settlement, which enables an Aboriginal people, in this case the Gudjala People, represented by Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen (the applicant) to establish native title. Also never routine is the opportunity offered by a determination, made with the agreement of all interested parties and by a public exercise of the judicial power of the Commonwealth, to evidence that objectives specified by the Commonwealth Parliament in the Native Title Act 1993 (Cth) (the Act) are being met in practice. 2 The applications being determined today, by consent, are QUD 80 of 2005, Gudjala People # 1 and QUD 147 of 2006, Gudjala People # 2. The determination under the Act is in favour of the Gudjala Native Title claimants in respect to the land and waters within the areas set out in Schedule 1 in each determination. 3 The State of Queensland, the Commonwealth of Australia, Charters Towers Regional Council, Flinders Shire Council, Citigold Corporation Limited, Ergon Energy Corporation Limited, Great Mines Pty Ltd, James Cook University and various Pastoralists are respondent parties to the applications. 4 The two applications in these proceedings are being determined together due to the geographic proximity and the application concerning similar materials and involving materially the same anthropological evidence. 5 The subject land today is generally known as Western Queensland, in the Regional Shire Councils of Etheridge, Finders and Charters Towers. Native Title rights are sought for determination by the applicants under the Act. 6 One of the Commonwealth Parliament's objectives in respect of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in s 87 of the Act by the Native Title Amendment Act 2009 (Cth). 7 Like many such claims, these claims have been long in their gestation. In earlier judgements in cases like the present, for example in 2012 in Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800; Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 and Fisher on behalf of the Ewamian People #2 v State of Queensland [2013] FCA 1249, I observed that native title claims which linger unresolved on a court list are an affront to our system of justice. I related in those cases how Parliament's objective of consensual resolution had been met. The statements which I then made are just as applicable to this case. In this case, too, the achievement of Parliament's objective would not have been possible without much hard and dedicated work by experienced legal advisers, the responsible actions of the parties guided by their advisers and, especially latterly, intensive case management, particularly by the Court's registrars. I commend the parties and the legal practitioners involved in the cases being heard today for the work latterly undertaken in bringing them to final, consensual resolution. 8 In the aftermath of Wik Peoples v Queensland (1996) 187 CLR 1, the Executive Government of the Commonwealth made provision for legal assistance to be provided to pastoralists in relation to native title claims via a scheme known as the Native Title Respondent Funding Scheme under s 213A of the Act. Over the now almost six years during which I have been responsible for the management of the list of native title cases in this region, and as I have stated in other determinations, I have directly observed how, in combination with responsible legal representation of applicants, via the North Queensland Land Council, of the State, via the Crown Solicitor and of other respondents, this legal assistance to pastoralists has repeatedly and beneficially contributed to the administration of justice and thus to Parliament's goal of national reconciliation in this important area of the Court's jurisdiction. This legal assistance to pastoralists was terminated with effect at the end of 2012 by the then Commonwealth Executive Government. The current Executive Government announced late last year that funding of the legal assistance would be restored, with the eligibility criteria revised, on 1 January 2014. It has very recently come to my attention in the course of the management of native title cases in this region that this funding has yet to flow through to those representing and advising pastoralists and other primary producers with respect to native title claims. 9 Discretionary value judgments in respect of public monies appropriated by Parliament are for the Executive Government of the day to make. What I can say again, and have in earlier determinations stated, based on direct experience, is that the addressing of the hitherto "unacceptably long time" for the resolution of native title cases and the recent experience of "faster and better claim resolution" to which the then Attorney General made reference previously (Echoes of Mabo: AIATSIS Native Title Conference, 6 June 2012, Speech by the Honourable Nicola Roxon MP, Attorney-General, http://www.attorneygeneral.gov.au/ Speeches/Pages/2012/Second% 20Quarter/6-June-2012---Echoes-of-Mabo---AIATSIS-Native-Title-Conference.aspx Accessed 7 December 2012) is best achieved by a combination of responsible legal representation of all interested parties and intensive case management and proactive, targeted use of alternative dispute resolution where appropriate by the judges and registrars of this Court. As I noted last year in an interlocutory judgment concerning one of the current claims for determination, Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 at [4]: [T]o my direct observation in court in respect of the regions of the State for which I have had case management responsibility, the collective representation of pastoral respondents enabled by that scheme greatly facilitated the responsible, consensual resolution of native title claims and removed much of the angst such claims might otherwise have occasioned such respondents. 10 I understand from submissions made in the course of case management of another native title case that, since the restoration of funding was announced, bids for the available funding have been submitted and that these may well exceed funds presently available. No interest group could expect any government uncritically to underwrite legal expenses from public funds. Even accepting this, the present absence of any decision in respect of the allocation of any funds is fraught with the imminent risk of inhibiting the Court's ability to conclude native title cases both efficiently and consensually, with all of the benefits such disposal entails. Absence of any decision is, I understand, also inhibiting the formulation of alternative means of funding at least some advice and representation for pastoralists and other primary producers generally. I further understand that local government, which is almost always an interested respondent party in a native title case is likewise being affected by a present absence of certainty as to funding from the Commonwealth. Here, too, there is an imminent risk of jeopardising the progress to finality of native title cases. The present situation is truly fraught with a risk of a return to "unacceptably long times" for the resolution of native title cases, with all of the adverse consequences for public and private interests that entails. 11 While it is for the Executive Government to propose and for Parliament to approve particular appropriations of public money, where that public money is directed to the provision of legal assistance to a party to a native title proceeding, be that party applicant, pastoralist or otherwise, so as to assist in the achievement of the objectives of the Act, it is for the judicial branch to ensure that the conduct of parties so assisted entails the responsible use of the benefit so conferred. That is a subject given regular attention by the Court via the intensive case management of native title claims. In this regard and truly there are secular inspirations to be drawn from scripture: "From those to whom much is given, much is expected" (Gospel of St Luke, Ch. 12, v 48, condensed and rendered in modern form). 12 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made in King v Northern Territory of Australia [2011] FCA 582 (King) per Mansfield J. His Honour made a number of observations about the preamble to the Act. I am in complete agreement not only with the substance of his Honour's observations in King but also with the manner in which he expressed them. They are exactly apposite in the present proceedings also. As I observed in Muluridji, I propose therefore to adopt them as my own in these reasons for judgment without further attribution. 13 The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications have always been the traditional owners of the land. By the Court's orders, the Australian community collectively recognises that status. It is important to emphasise that the Court's orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement. 14 The applicants have filed the following documents relevant to the consent determinations in the applications: (a) Dr Anthony Redmond (September 2009) Anthropologist's Report Gudjala, Gudjala #1 ((QUD80/05) Gudjala #2 (QUD147/06) Vol 1 and 2 (The Connection Report); (b) Historian Val Donovan (December 2010) Historical Report in relation to QUD80/2005, Elizabeth Dodd & Ors on behalf of the Gudjala People and QUD147/2006, Elizabeth Dodd & Ors on behalf of the Gudjala People #2 (Historical Report); (c) Dr Anthony Redmond (21 June 2011) Supplementary Anthropologist's Report: QUD80/205 (sic), Elizabeth Dodd & Ors on behalf of the Gudjala People and QUD147/2006, Elizabeth Dodd & Ors on behalf of the Gudjala People #2; (d) Dr Anthony Redmond (June 2011) Gudjala Table 2 Rights and Interests; (e) Dr Anthony Redmond (March 2012) Further information relating to Gudjala #1 and #2 arising from Experts Conference with State 13-14 February 2012; (f) Dr Anthony Redmond and Dr Alison Pembroke (March 2012) Native Title Rights and Interests in the Upper Burdekin Region; (g) Dr Anthony Redmond (4 September 2013) Gudjala #1 (QUD80/05) Gudjala #2 (QUD147/06) File note on Gloria Mitchell / Santo & Joe, mother of Hoya Siemons / Masso; (h) Affidavit of Gloria Santo, being annexure "CAT4" to the affidavit of Cheryl Ann Thomson filed on 20 November 2013; (i) Report of the Conferences Experts 13 February 2012; (j) A copy of the Conferences of Experts Report.
SECTION 87 OF THE ACT 15 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where: (a) the period specified in the notice given under s 66 of the Act has ended (s 87(1)); (b) there is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i)); (c) the terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b)); (d) the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and (e) having satisfied the criteria relevantly detailed, the Court considers the making of orders as it appears to the Court to be appropriate to do so pursuant to s 87(1A) of the Act. The Court may make a determination in accordance with s 87(2), as is relevant to these proceedings. 16 The focus of the Court in considering whether the orders sought are appropriate under s 87(1) and s 87(2) is on the making of the agreement by the parties. In Muluridji I cited observations of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474. Such remarks are apt to be adopted in this case. His Honour stated: [36] … The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. [37] In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. 17 As such, the Court is not required to make its own inquiry of the merits of the applicants' claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. The Court may consider such evidence to determine whether the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30]. 18 In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated: [38] … State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.
SECTION 94A OF THE ACT 19 Section 94A of the Act requires that a native title determination order must satisfy the requirements of s 225 of the Act. Section 225 provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease -- whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. [emphasis in original] 20 Section 223(1) of the Act defines 'native title' and 'native title rights and interests' as: (1) … the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 21 In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ (with McHugh J agreeing) stated the relevant principles with respect to s 223 of the Act, at [46] to [55] and [80] to [83]: (a) A traditional law or custom which is the source of native title rights and interests is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. (b) The origins of the law or custom from which native title rights and interests stem must be found in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of sovereignty by the British Crown - it is only those rules that are "traditional" laws and customs. (c) That normative system must have a continuous existence and vitality since sovereignty. (d) If that society ceases to exist as a group which acknowledges and observes those pre-sovereignty laws and customs, those laws and customs cease to have continued existence and vitality. (e) Only native title rights or interests that existed at the time of the change in sovereignty will be recognised. However, some change to, or adaptation of, traditional laws or customs or some interruption in the enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. (f) In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional laws and customs at times earlier than those described in the evidence. 22 Further, there is authority of this Court, exercising appellate jurisdiction, which lends itself to a determinative conclusion that physical presence is not a necessary requirement for continuing connection. See, for example, Moses v State of Western Australia [2007] FCAFC 78 at [306] per Moore, North and Mansfield JJ.
(2002) 214 CLR 422
(2001) 115 FCR 109
(2000) 104 FCR 494
(1996) 187 CLR 1
(2002) 117 FCR 6