Doyle on behalf of the Iman People #2 v State of Queensland

THE CRITERIA IN SECTION 87A OF THE NATIVE TITLE ACT 1993 (CTH) ARE SATISFIED 8 The application of the parties in this matter concerns a proposed determination of native title for a part of the area under claim. That being so, the power of the Court to give effect to the parties' agreement is founded on s 87A of the NTA. That section sets out various criteria which must be met before the Court may make such a determination of native title. The first necessary criterion is that there is extant a proceeding in relation to an application for a determination of native title (s 87A(1)(a)). The Iman People #2 proceeding is such a proceeding so that criterion has been met. 9 The second criterion is that the notice period under s 66 of the NTA must have ended prior to the parties' agreement being reached (s 87A(1)(b)). The Tribunal's notification of the Iman People #2 application was completed in 2002 and so that criterion has long been met. 10 The third criterion is that the area the subject of the proposed determination must be included in the area covered by the application (s 87A(1)(b)). As has already been mentioned above, the agreement relates to all but three parcels of land within the claim area for the Iman People #2 application. Accordingly, that criterion has also been met. 11 The fourth criterion is that certain persons must be parties to the agreement in question (s 87A(1)(c)). On this criterion, it is convenient to mention first that, under s 87A(1)(c)(vii), the Commonwealth Minister must be a party to the agreement in question if he or she "is a party to the proceeding at the time the agreement is made or has intervened in the proceeding at any time before the agreement is made". In this matter, while the Commonwealth Minister became a party in 2002, in 2013 he filed a notice under s 84(7) ceasing to be a party. He does not therefore fall within the first limb of s 87A(1)(c)(vii) above. However, that does not necessarily dispose of the second limb. To address this matter, I requested submissions from the Iman Applicant on the question whether this step of becoming a party, or any other step taken by the Commonwealth Minister, constituted an intervention in the proceeding under the second limb to s 87(1)(c)(vii) above, such that he must now be a party to the s 87A agreement. Having considered the submissions I subsequently received, I consider that that limb of the subsection is directed to an intervention by the Commonwealth Minister under s 84A of the NTA and it is therefore unnecessary for him to be a party to the s 87A agreement in this instance. 12 Aside from that subsection, the persons or entities that must be parties to the s 87A agreement in this matter are: the Iman Applicant (s 87A(1)(c)(i)); each person who holds an interest in relation to the land or waters in any part of the determination area at the time the agreement is made and who is a party to the proceeding at the time the agreement is made, namely Ergon Energy Corporation Limited, Telstra Corporation Limited, the mining companies and the pastoralists mentioned above (s 87A(1)(c)(ii)); the State of Queensland (s 87A(1)(c)(viii)) and the various local government bodies: the Banana Shire Council; the Central Highlands Regional Council; the Maranoa Regional Council; and the Western Downs Regional Council (s 87A(1)(c)(ix)). Since all of these persons or entities are parties to the s 87A agreement, and none of the other subsections of s 87A(1)(c) applies in this case, I consider this criterion has been met. 13 The fifth criterion is that the terms of the proposed determination must be in writing and signed by each of the abovementioned parties (s 87A(1)(d)). Having examined the proposed determination which was attached to the s 87A agreement filed by the Iman Applicant on 7 June 2016 and amended on 22 June 2016, I am satisfied that this criterion has also been met. 14 Next, as mentioned immediately above, the Iman Applicant filed a copy of the proposed determination with the Court on 7 June 2016 and amended it on 22 June 2016. In that event, s 87A(3) of the NTA requires the Registrar of the Court to give notice to the other parties to the proceeding that such a filing has occurred. While all those parties are required to be, and are in this case, parties to the s 87A agreement, nonetheless the Deputy Registrar (Native Title) gave such a notice to those parties on 20 June 2016. This sixth criterion has therefore been satisfied. 15 The seventh criterion is that the Court must be satisfied that an order in, or consistent with, the terms of the proposed determination would be within the power of the Court (s 87A(4)(a)). A determination of native title will be within the power of the Court if: it is consistent with s 94A of the NTA; the rights and interests included in the proposed determinations are recognisable by the common law of Australia; and there is no other determination in existence over the area the subject of the proposed determination. 16 Section 94A requires the Court, in making a determination, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 outlines the required content of 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. (Emphasis in original; note omitted) 17 The Iman Applicant has filed a detailed set of submissions in which it has described the native title rights and interests that the Iman People hold in the proposed determination area. Those submissions reference the extensive work undertaken by the anthropologist, Dr Fiona Powell and by the historian, Dr Rosalind Kidd. At different stages of this proceeding, Dr Powell prepared seven reports, each of which has been filed with the Court. Dr Kidd's historical report was prepared and filed in December 2012. 18 Having read that material, I am satisfied that the native title rights and interests of the Iman People in the proposed determination area are recognisable by the common law of Australia. Further, with specific regard to the provisions of ss 94A and 225 of the NTA, having examined that material and the proposed determination attached to the s 87A agreement, I am satisfied that each of the matters outlined in those sections is properly articulated in the proposed determination. Finally, I am also satisfied that there is no other determination of native title in existence over any part of the proposed determination area. 19 The final criterion the parties need to meet in order for the Court to make the proposed 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 would be appropriate to make a determination in terms of the parties' agreement. 20 In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) (at [5]-[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining this question of "appropriateness", with respect to the corresponding provision in s 87(1A). I consider those observations apply equally to a determination under s 87A of the NTA. It is not necessary for me to repeat all those observations here, it will suffice to set out the concluding summary as follows (at [14]): It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title, is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation..; whether the terms of the proposed order are unambiguous and clear …; and whether the agreement has been preceded by a mediation process … (Citations omitted) 21 As I have already mentioned above, the Iman Applicant has filed a detailed set of submissions in support of this proposed determination. Having regard to those submissions, I am satisfied that the steps taken by the parties as described therein, together with the fact that all parties have had the advantage of competent legal representation, indicates that their agreement is free and informed. I also take into account the fact that the proposed consent determination has been preceded by an intense process of case management conducted by a Deputy Registrar of this Court. Finally, I am satisfied that the terms of the proposed determination are unambiguous and clear. I am therefore satisfied it is appropriate to make the proposed determination attached to the s 87A agreement.

A BRIEF REVIEW OF SOME OF THE MATERIALS ABOUT THE IMAN PEOPLE'S NATIVE TITLE 22 Notwithstanding this conclusion, I consider it is appropriate to review briefly some of the anthropological evidence and the evidence of some of the members of the Iman claim group that go to establish that the Iman People hold native title over the determination area. As in Nelson, I do not do this to second guess the process that has been followed by the parties as outlined above, but to provide some acknowledgment to the time and effort that has obviously been devoted to the preparation of the materials that have been placed before the Court in support of this application. 23 The proposed determination recognises that native title is held by the descendants of the following apical ancestors of the Iman people: (a) Mary Arwa (b) Jim Waterton (c) Ada Robinson (d) Maggie Palmtree (e) Lizzie Palmtree (f) Eliza Shields (g) Mary Dunn (mother of Maggie Dunn) (h) Fanny Waddy/Sandy (i) Dick Bundi/Bundai and Alice Dutton (j) Mother of John Serico (known as Aggie). 24 In addition to the experts' reports mentioned above, a number of members of the Iman claim group - Mr Marshall Bell, Ms Beatrice Henry, Ms Doreen Edmonds, Ms Priscilla Isles, Mr Patrick Silvester, Mr Lawrence Bundi, Mr Eddy Waddy, Mr Richard Doyle Snr, Mr Terrence Cressbrook, Mr Fergus Waterton and Mr William Munns - have filed affidavits that provide compelling evidence of the continued acknowledgement and observance of a range of Iman laws and customs with respect to cultural knowledge, spiritual beliefs, sites, decision-making and resource use. The affidavits illustrate in detail the transmission of the stories that support the beliefs held by the Iman People as they relate to hunting and the collection and preparation of bush tucker, the observance of laws and customs, the kinship of the members of the Iman claim group and their connection to each other through their descent from the apical ancestors named above. 25 The Iman Applicant relies on this material to support exclusive native title rights to that part of the determination area described in Part 1 of Schedule 1 of the proposed determination (other than in relation to the use and enjoyment of water) and to non-exclusive native title rights (other than in relation to the use and enjoyment of water) over the remainder of the determination area, as described in Parts 2, 3 and 4 of Schedule 1. 26 In her Stage 6 Report, Dr Powell opined that: On the basis of my consideration of the early ethno-historical and more recent materials, I found that the land-holding group relevant to the Claim Area is the one identified as Iman. This group is associated with the area centred on the Upper Dawson and which extends southwards into the upper Condamine region and northwards into the mid-Dawson region. I also found that at and since the time of effective sovereignty in this region (about 1856) the connections of this land-holding group to this area have been regulated according to laws and customs that determine the membership of this group and the group's rights and responsibilities in relation to the ownership of this area and use of its natural resources. 27 In her report, Dr Kidd provided a detailed account of European settlement in the traditional lands of the Iman People. In her Stage 6 Report, Dr Powell summarised the key parts of Dr Kidd's report in the following terms: … The gradual settling of the area by pastoralists in the decades following the Leichhardt Expedition in 1844. … … The Claim Area has a history of warfare between its Aboriginal population and the early pastoralists, resulting in Aboriginal depopulation and relocation to secure places within and beyond the Claim Area. Warfare between the pastoralists and Aboriginal inhabitants commenced in the 1850s, culminating in 1857, with the uprising at Hornet Bank Station, during which most members of the Fraser family and their European workforce were killed. This event was followed by about eighteen months of warfare between the Aboriginal people of the Dawson River region and the settlers, who were assisted by the official Native Mounted Police Force and privately supported militia such as "the Browns" and Frederick Walker's own Native Mounted Police Force. This war ended in the Claim Area in the early 1860s, apparently after the Aboriginal people in the Upper Dawson Valley, realising that they were outnumbered and outgunned, decided to cease their hostilities. (Footnotes omitted) 28 In his affidavit, Mr Fergus Waterton, one of the members of the Iman claim group, referred to the infamous Hornet Bank killings. He said that: Dad told me that his father's Grandfather was Bilbah who was involved in the killings of the Fraser family at Hornet Bank. Dad said that immediately after the killings at Hornet Bank, Bilbah went west towards Augathella but came back to the Dawson where he was shot at Cockatoo Station a few years later. Dad said his grandfather (Bilbah's son) was called Tobin and that after Hornet Bank he was given refuge as a boy on Waterton station, north east of Taroom. That is where our family gets its name from. Dad told me that Tobin grew up and was buried on Waterton Station. Grandfather was born there and upon the death of his father, he took Tobin as his bush name. Dad said that Grandfather did not become a resident of Taroom Aboriginal settlement until shortly before his death in 1917. Granny Arwa and Dad went with him to Taroom at that time. Dad told me that Grandfather was a renowned horseman and stockman. He worked all through the upper Dawson area. Some of the places that Dad said Grandfather worked on were Waterton, Gwambagwine, Ghinghinda Hornet Bank, Eurombah, Pony Hills, Reedy Creek, Glenhaughton and Lonesome stations. Dad said that when Grandfather couldn't get stock work, he worked ringbarking, fencing and scalping. Dad told me that my Grandfather is buried by Palm Tree Creek on Waterton station. He said that he was buried there because it was important to our family that he was buried on his country. I got permission from the owners of Waterton Station to visit the grave site. It was the only one down by the creek and I was glad that I had found his resting place. 29 These quotations from the extensive evidence advanced by the Iman Applicant provide a glimpse of the enduring relationship that exists and has existed since sovereignty between the Iman People and the land and waters of the proposed determination area.

NOMINATION OF A PRESCRIBED BODY CORPORATE 30 Finally, it is necessary to address the nomination of a prescribed body corporate. Section 55 of the NTA requires the Court to make such determinations as are required by s 56 (which deals with holding the native title on trust) and s 57 (which deals with non-trust functions of prescribed bodies corporate). Section 56 of the Act relevantly provides: Trust determination (1) One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom. Steps in making determination (2) The Federal Court is to take the following steps in making the determination: (a) first, it must request a representative of the persons it proposes to include in the determination of native title 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 Federal 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) secondly, if the common law holders give the nomination within the period, the Federal 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) thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders. Native title held in trust (3) On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders. (Emphasis in original) 31 Further, s 57 relevantly provides: Where trustee (1) If the determination under section 56 is that the native title rights and interests are to be held in trust by a prescribed body corporate, the prescribed body corporate, after becoming a registered native title body corporate (see the definition of that expression in section 253), must also perform: (a) any other functions given to it as a registered native title body corporate under particular provisions of this Act; and (b) any functions given to it as a registered native title body corporate under the regulations (see section 58). … Functions where not trustee (3) After becoming a registered native title body corporate, the body must perform: (a) any functions given to it as a registered native title body corporate under particular provisions of this Act; and (b) any functions given to it under the regulations (see section 58). 32 In accordance with the above sections, the Iman Applicant has proposed that the native title rights the subject of the proposed determination are to be held on trust for the common law holders by a prescribed body corporate. Accordingly, it has nominated the Wardingarri Aboriginal Corporation (ICN: 8305) (the "Corporation") to be the prescribed body corporate for the purposes of s 56(1) above and to perform the functions mentioned in s 57 above. The Corporation was registered on 22 October 2015. The Iman Applicant has therefore filed all the necessary material to satisfy me that it has complied with the requirements of ss 55 to 57 (inclusive) of the NTA.

CONCLUSION 33 The achievement of a settlement of a native title claim by agreement is to be encouraged and congratulated. The examination that the Court will now make recognises, under the laws of Australia, that native title exists according to the traditional laws and customs of, and is held by the Iman People. It is, however, important to record in conclusion that this determination does not grant native title to the Iman People, it recognises the native title they have long held in the determination area. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

SCHEDULE OF PARTIES QUD 6162 of 1998 Respondents Fourth Respondent: MARANOA REGIONAL COUNCIL Fifth Respondent: WESTERN DOWNS REGIONAL COUNCIL Sixth Respondent: TELSTRA CORPORATION LIMITED Seventh Respondent: ERGON ENERGY CORPORATION LIMITED Eighth Respondent: AUSTRALIA PACIFIC LNG PTY LIMITED Ninth Respondent: GLENCORE COAL QUEENSLAND PTY LIMITED Tenth Respondent: JEMENA QUEENSLAND GAS PIPELINE (1) PTY LTD Eleventh Respondent: JEMENA QUEENSLAND GAS PIPELINE (2) PTY LTD Twelfth Respondent: MOONIE OIL PTY LTD Thirteenth Respondent: SANTOS QNT PTY LTD Fourteenth Respondent: VAMGAS PTY LTD Fifteenth Respondent: EION EVAN ATKINS Sixteenth Respondent: DOUGLAS R BAKER Seventeenth Respondent: TANIA M BAKER Eighteenth Respondent: TONY P BAKER Nineteenth Respondent: RONALD ROBERT BAXTER Twentieth Respondent: JUDITH JAYNE COPELAND Twenty-First Respondent ROBERT JOHN COPELAND Twenty-Second Respondent JOHN RICHARD FERLING Twenty-Third Respondent KEVIN FERLING Twenty-Fourth Respondent MARGARET GEARY Twenty-Fifth Respondent STUART FRANK GOLDEN Twenty-Sixth Respondent WILLIAM FRANCIS HAY Twenty-Seventh Respondent MARJORIE JOYCE JOHNSTON Twenty-Eighth Respondent KALBELA PTY LTD Twenty-Ninth Respondent LEANN BEVERLEY KALLQUIST Thirtieth Respondent WAYNE JAMES KALLQUIST Thirty-First Respondent MALCOLM MCINTYRE Thirty-Second Respondent DAVID THOMAS POOLE Thirty-Third Respondent DOUGLAS WILLIAM POOLE