Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland

Federal Court of Australia|2014-03-18|Before: Logan J

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.

Corporations (Aboriginal and Torres Strait Islanders) Act 2006(Cth)

Native Title Amendment Act 2009(Cth)

(Cth), the Telecommunications Act 1975(Cth)

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

(Cth), the Telecommunications Act 1991(Cth)

Land Protection (Pest and Stock Route Management) Act 2002(Qld)

(Queensland) Act 1993(Qld)

Native Title Act 1993(Cth)ss 55, 56, 57, 66, 87, 94A, 213A, 223, 225

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.

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.

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