Dodd on behalf of the Gudjala People Core Country Claim #2 v State of Queensland [2016] FCA 1506 | Case summary

Judgment (7 paragraphs)

[1]

A. The Applicant has brought Native Title Determination Application QUD 147 of 2006 ("the Application") which relates to an area which includes the land and waters the subject of the proposed determination. B. On 18 March 2014, a determination that native title exists was made by consent by the Federal Court of Australia over part of the land and waters of the area covered by the Application. C. The parties to the Application that hold an interest in relation to the remainder of the land or waters of the area covered by the Application have asked the Court to make a consent order for a determination of native title over that area. BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth), BY CONSENT THE COURT ORDERS THAT:

There be a determination of native title in the terms set out below ("the determination") .
The Applicant is given leave to discontinue that part of the Application which covers any area not included in this determination;
The Applicant file and serve a notice of discontinuance in accordance with paragraph 2 above within seven days.
Each party to the proceeding is to bear its own costs. BY CONSENT THE COURT DETERMINES THAT:
The Determination Area is the land and waters described in Schedule 1A, and depicted in the map attached to Schedule 1B.
Native title exists in relation to the Determination Area described in Schedule 1.
The native title is held by the Gudjala People described in Schedule 3 ("the native title holders").

The land and waters described in (1) above includes the land or waters upon which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and/or s 21 of the Native Title (Queensland) Act 1993 (Qld) applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth). Schedule 3 -- NATIVE TITLE HOLDERS The native title holders are the Gudjala People. The Gudjala People are the descendants of one or more of the following people: (a) Alice Anning (also known as Alice White) of Bluff Downs Station; (b) Cissy McGregor; (c) Maggie "Ton Ton" Thompson; (d) Topsy Hann; or (e) Zoe (mother of Hoya Siemon/Bowman). Schedule 4 -- OTHER INTERESTS IN THE DETERMINATION AREA The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:
1. The rights and interests of the parties under the following agreements: (a) Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People, the Ngrragoonda Aboriginal Corporation ICN 7982, Flinders Shire Council and Charters Towers Regional Council as parties to the Indigenous Land Use Agreement QI2014/031 entered on the Register of Indigenous Land Use Agreements on 3 October 2014; and (b) Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People and Ergon Energy Corporation Limited ACN 087 646 062 as parties to the Indigenous Land Use Agreement QI2013/082 entered on the Register of Indigenous Land Use Agreements on 24 April 2014.
2. The rights and interests of Ergon Energy Corporation ACN 087 646 062: (a) as the owner and operator of any "Works" as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area; (b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld); (c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including: (i) rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made; (ii) rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and (iii) to inspect, maintain and manage any Works in the Determination Area.
3. The rights and interests of the State of Queensland and the Charters Towers Regional Council and Flinders Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.
4. The rights and interests of Charters Towers Regional Council: (a) under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be its local government area; (b) as the: (i) lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not; (ii) grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not; (iii) holder of any estate or interest in land, as trustee of any reserves, that exist in the Determination Area; (c) as the owner and operator of infrastructure, and those facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to: (i) undedicated but constructed roads except for those not operated by Council; (ii) water pipelines and water supply infrastructure; (iii) drainage facilities; (iv) watering point facilities; (d) to enter the land for the purposes described in paragraphs (a), (b) and (c) above by its employees, agents or contractors to: (i) exercise any of the rights and interests referred to in paragraph 4 above; (ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph (c) above; (iii) undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management.
5. The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld), including (but not limited to) those held by Citigold Corporation Limited ACN 060 397 177 and its related bodies corporate.
6. Any other rights and interests: (a) held by the State of Queensland or Commonwealth of Australia; or (b) existing by reason of the force and operation of the Laws of the State and the Commonwealth.
7. To avoid any doubt paragraph s 6(a) and 6(b) include, so far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (a) waterways; (b) beds and banks or foreshores of waterways; (c) stock routes; and (d) areas that were public places at the end of 31 December 1993. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 In 2005 and 2006, Ms Elizabeth Dodd, Mr Andrew (Smokey) Anderson, Ms Gloria Santo, Ms Christine Hero and Ms Priscilla Michelle Huen, for and on behalf of the Gudjala People filed two native title determination applications with this Court: QUD 80 of 2005 and QUD 147 of 2006 (the applications). Both applications related to various areas of land and waters in and around Charters Towers in north Queensland. 2 In 2013, during the course of case management by a Registrar of the Court, the parties agreed that, save for certain areas that were affected by the existence of military orders issued pursuant to reg 54 of the National Security (General) Regulations 1939 (Cth) (the military orders areas), both of the applications could proceed to a consent determination over those parts of the claim area where, it was agreed, native title could exist. The military orders areas were identified in an affidavit of Michael Paul Everitt filed by the State of Queensland on 22 November 2013. 3 On 27 November 2013, programming orders were made in each proceeding permitting all parts of the claim area, except the military orders areas (Gudjala Part A in each of the applications) to proceed to a consent determination in accordance with s 87A of the Native Title Act 1993 (Cth) (the NTA). On 18 March 2014, Gudjala Part A of each application was determined by Logan J (Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 3) [2014] FCA 231 (Dodd)). 4 The question of extinguishment affecting the military orders areas was finally determined by the High Court in State of Queensland v Congoo (2015) 256 CLR 239; [2015] HCA 17. Soon thereafter, negotiations commenced for a final determination with respect to the military orders areas in each application. 5 The Gudjala Applicant and the remaining respondent parties, the State of Queensland, Charters Towers Regional Council, Flinders Shire Council, Ergon Energy Corporation Limited, Citigold Corporation Limited, Great Mines Pty. Ltd and various pastoralists, have now informed the Court that they have reached agreement on the terms of orders that should be made to determine the balance of the two proceedings (the proposed orders). The terms of that agreement were filed with the Court on 8 November 2016 (the s 87A agreement - see [6] below). Accordingly, the parties have requested that the Court make a determination of native title under s 87 of the NTA in, or consistent with, the terms of the proposed orders. 6 While the parties have described their agreement as an agreement that has been made under s 87 of the NTA, in the circumstances of these two applications, I consider the determinations with respect to the remaining parts of the claim areas must be dealt with under s 87A. That is so because these determinations will relate to a part - the remainder - of the area covered by the two applications (see s 87A(1)(b)) and not to a part of the proceedings (see s 87(1)(a)(ii)). 7 In practical terms, this distinction between s 87A and s 87 of the NTA is of little significance in these two matters. That is so because, while those sections of the NTA use different terminology and apply to different circumstances - s 87 to the settlement of a part of a proceeding and s 87A to a settlement relating to a part of a claim area in an application - the procedural and substantive conditions for the making of a consent determination in both sections are essentially the same. For example, s 87(1)(b) requiring the terms of the agreement to be in writing and signed by or on behalf of the parties; s 87(1A) requiring the Court to consider whether it is appropriate to make the orders sought; and s 87(1)(c) requiring the Court to be satisfied that the proposed orders are within the power of the Court, are reflected in almost identical terms in ss 87A(1)(d), 87A(4)(b) and 87A(4)(a), respectively. 8 The power of the Court to give effect to the parties' agreement is, in this instance, therefore founded on s 87A of the NTA. That section sets out the various conditions which will trigger the jurisdiction of the Court in the event that the parties reach agreement on the terms of an order to resolve a proceeding where the agreement relates to a part of the claim area (s 87A(1)(b)). The first condition is that the notice period under s 66 of the NTA must have ended prior to the parties' written agreement being filed with the Court (s 87A(1)(b)). The National Native Title Tribunal's notification of the Gudjala #1 application was completed on 13 March 2006 and the Tribunal notification of the Gudjala #2 application was completed on 2 February 2011. Thus, that condition has been met. 9 Secondly, the agreement of the parties must relate to an area (the determination area) which is included in the area covered by the application (s 87A(1)(b)). As I have already observed above, in this instance the agreement of the parties relates to the remaining parts of the two applications. Accordingly, that condition is also met. Thirdly, all of the parties described in s 87A(1)(c) must be parties to the agreement. That condition, too, is met because both the Gudjala Applicant on behalf of the Gudjala native title claim group and the remaining respondent parties (see at [5] above) are described as parties to the s 87A agreement. Fourthly, the terms of the agreement must be signed by or on behalf of those parties (s 87A(1)(d)). It is apparent from the s 87A agreement filed with the Court on 8 November 2016 that condition has also been met. 10 Having satisfied those matters, the next condition is that the Court must be satisfied that an order in the terms of the order sought, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). An order will be within the power of the Court if it complies with s 94A of the NTA, if the rights and interests included in the proposed determinations are recognisable by the common law of Australia and if there is no other determination in existence over the area the subject of the proposed determinations. 11 Section 94A requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 outlines the content of a determination of native title as: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land 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. 12 The expressions "native title" and "native title rights and interests" are defined in s 223 of the NTA. I have examined the terms of the proposed orders and I am satisfied that each of the matters referred to in s 225 of the NTA are appropriately articulated therein. Further, I am satisfied that the native title rights and interests that are proposed to be recognised in the proposed orders are of the kind defined in s 223, that is they are supported by the evidentiary material filed by the Gudjala Applicant, including the extensive anthropological reports by Dr Anthony Redmond and the historical report by Ms Val Donovan, and are therefore capable of recognition by the common law of Australia. Finally, I note that there is no other determination of native title in existence over each of the areas that are the subject of the orders I will make. 13 As to the remaining subsections of s 87A, since all the parties to these two applications are parties to the s 87A agreement, the notice requirements of s 87A(3) and the objection provisions of s 87A(8) do not arise for consideration in this matter. As well, none of the parties has elected to file an agreed statement of facts so I do not need to concern myself with ss 87A(9) to 87A(12) inclusive. 14 The final condition the parties need to meet in order to have the Court make a consent determination of native title concerns the operation of s 87A(4)(b) of the NTA. That section requires the Court to be satisfied that it is appropriate to make a determination in terms of the parties' agreement. 15 In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 (at [5]-[13]), I canvassed the authorities that identified the factors to which the Court will routinely have regard in determining this question of "appropriateness". It is not necessary for me to repeat all those observations here, it will suffice to set out the concluding summary as follows (at [14]): It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation..; whether the terms of the proposed order are unambiguous and clear …; and whether the agreement has been preceded by a mediation process … See also the summary of the above matters set out in Pwerle v Northern Territory [2016] FCA 304 at [20] and the observations of Logan J in Dodd at [16]-[18]. 16 In determining this question, first, I have been assisted by the outline of submissions filed by the Gudjala Applicant. Secondly, I have taken account of the review of the materials that were placed before the Court in Dodd to demonstrate that native title existed in Gudjala Part A (see Dodd at [23]-[33]). Since the areas in Gudjala Part A are geographically close to the military orders areas that are the subject of these determinations, I consider those materials can generally be translated to these claim areas. Thirdly, I take account of the fact that the s 87A agreement in this matter was reached after intensive case management on the part of a Registrar of this Court and throughout the proceedings, all the parties were represented by independent and competent lawyers. Finally, I consider the terms of the s 87A agreement which is filed with the Court are unambiguous and clear. I am therefore satisfied that the s 87A agreement of the parties was entered into on a free and informed basis. 17 Thus far, I have been addressing the native title related features of the proposed orders as raised by s 225(a) and s 225(b) of the NTA. It is convenient, next, to turn to, what I will describe as, the tenure-related issues raised by s 225(c) to s 225(e) inclusive. Those subsections are 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 or waters and, if it does exist, a determination of: … (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. 18 With respect to these tenure-related issues, I raised some concerns with the parties similar to those that I raised in Bar Barrum #5: see Kynuna on behalf of the Bar Barrum People #5 v State of Queensland [2016] FCA 1504 (Bar Barrum #5) at [38]-[46]. Subsequently, the parties provided an amended form of Schedules 2 and 4 to the proposed orders which: (a) deleted the reference to s 47 of the NTA in clause 1(b) of Schedule 2 in both matters; (b) deleted clause 7 from Gudjala #1 and clause 6 from Gudjala #2 of Schedule 4; and (c) amended clauses 7 and 8 of Gudjala #1 and clauses 6 and 7 of Gudjala #2 in Schedule 4. 19 Having regard to the apposite provisions of the NTA, the observations I made in Bar Barrum #5 about the streamlined approach to tenure assessments at [29]-[36] and for the reasons stated in Bar Barrum #5: at [37]-[41] in relation to [18(a)] above, noting that in these two applications the claimants were pursuing claims under ss 47A and 47B, but not under s 47 of the NTA; at [44] in relation to [18(b)] above; and at [45] in relation to [18(c)] above; I consider these amendments were appropriate to be included in these determination orders. 20 As with the Gudjala Part A determinations, the native title rights and interests the subject of these determinations are not to be held on trust. That brings into operation the provisions of s 57 of the NTA, specifically s 57(2). It provides: If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3): (a) first, it must request a representative of the common law holders to: (i) nominate, in writing given to the Federal 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) secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions; (c) thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body corporate is to perform the functions. 21 The determination under s 57(1) mentioned in this subsection is a determination under s 56 that the native title rights and interests are to be held in trust. On 3 August 2016, the Gudjala Applicant filed a Notice of Nomination and Consent of the Prescribed Body Corporate nominating the Ngrragoonda Aboriginal Corporation ICN 7982 (the Corporation) to be the Prescribed Body Corporate to perform the functions set out in s 57(3) of the NTA. I therefore determine that the Corporation is the body corporate that is to perform those functions. 22 For these reasons, I am satisfied that all of the conditions in s 87A of the NTA have been met and it is appropriate to make determinations of native title that are consistent with the terms of the proposed orders, as amended, without holding a hearing. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Dodd on behalf of the Gudjala People Core Country Claim #2 v State of Queensland

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