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[2024] FCA 1045
Federal Court of Australia
2024-09-12
Rangiah J
Original judgment source is linked above.
The application 12 The application for a determination of native title was filed in the Federal Court on 21 August 2017. 13 On 6 November 2017, the application was separated, by order of the Court, into Part A (the area that was the subject of an overlapping claim by the Wadja People) and Part B. 14 On 9 August 2018, the application was amended to remove Part A from the claim area. The proposed determination area consists of a substantial part, but not the whole, of Part B. 15 There are two outstanding matters in the claim area that are unresolved between the State and the applicant. The first matter relates to the potential application of s 47B of the Act to 53 parcels in the claim area and includes a further four parcels in a claim by the Iman People #5 (QUD 497 of 2023). The second matter relates to certain parcels in the claim area which may be the subject of an agreement for the purposes of s 47C of the Act. 16 The applicant now seeks a determination on behalf of the Iman People over land and waters within the external boundaries of the proposed determination area. 17 The persons comprising the applicant are: Harold Doyle, Samantha Booth, John Waterton and Trent White. 18 The respondents to the application are: the State of Queensland, the Commonwealth of Australia, Banana Shire Council, Maranoa Regional Council, Western Downs Regional Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Australia Pacific LNG CSG Marketing Pty Limited, Australia Pacific LNG CSG Processing Pty Limited, Australia Pacific LNG CSG Transmissions Pty Limited, Australia Pacific LNG Gladstone Pipeline Pty Limited, Australia Pacific LNG Pty Limited, Azeeza Pty Limited, Blue Energy Limited, Bronco Energy Pty Limited, Eureka Petroleum Pty Limited, Jemena Darling Downs Pipeline (1) Pty Limited, Jemena Darling Downs Pipeline (3) Pty Limited, Jemena Queensland Gas Pipeline (1) Pty Limited, Jemena Queensland Gas Pipeline (2) Pty Limited, KGLNG E&P Pty Limited, KGLNG Liquefaction Pty Limited, PAPL (Downstream) Pty Limited, PAPL (Upstream) Pty Limited, PAPL (Upstream II) Pty Limited, New Wilkie Energy Pty Limited (Administrators Appointed) (Receivers and Managers Appointed), Santos CSG Pty Limited, Santos GLNG Pty Limited, Santos QNT Pty Limited, Santos Queensland, LLC, Santos Toga Pty Limited, Santos TPY CSG, LLC, Santos TPY, LLC, Senex Assets Pty Limited, Stuart Petroleum Cooper Basin Gas Pty Limited, Syntech Resources Pty Limited, TotalEnergies EP Australia, TotalEnergies EP Australia II, TotalEnergies GLNG Australia, Victoria Oil Pty Limited, Wandoan Holdings Pty Limited and Amplitel Pty Limited as trustee of the Towers Business Operating Trust. 19 All parties to the application have reached agreement that native title exists in the proposed determination area and as to the nature and extent of those native title rights and interests. That agreement, made under s 87A(1)(b) of the Act, was filed in the Federal Court on 30 July 2024. 20 The evidence of connection relied on by the applicant includes claimant evidence in the form of affidavits and various expert reports. Some of the evidence relied on by the applicant includes evidence filed for the Iman People #2 determination. 21 The evidence of members of the native title claim group about their traditional laws and customs and rights and responsibilities in respect to land and waters is of the highest importance: Sampi v Western Australia [2005] FCA 777 at [48]. The claimant evidence of connection is comprised of the following affidavits: Affidavit of Beatrice Henry filed 31 July 2012; Affidavit of Doreen Edmonds filed 31 August 2012; Affidavit of Priscilla Iles filed 31 August 2012; Affidavit of Marshall Bell filed 21 December 2012; Affidavit of Patrick Silvester filed 5 March 2013; Affidavit of Lawrence Bundi filed 28 June 2013; Affidavit of Eddy Waddy filed 2 August 2013; Affidavit of Richard Doyle (Senior) filed 23 August 2013; Affidavit of Terry Cressbrook filed 9 January 2014; Affidavit of Fergus Waterton filed 9 January 2014; Affidavit of William Joseph Munns filed 9 May 2016; Affidavits of Eddy Waddy dated 4 December 2020, 14 September 2023 and 27 October 2023; Affidavits of Stuart White dated 28 January 2021 and 20 November 2021; Affidavit of Heather Tobane dated 28 January 2021; Affidavit of Mona Booth dated 12 November 2021; Affidavits of Ken Waterton dated 20 November 2021 and 17 December 2021; Affidavit of Troy Noble dated 30 November 2021; Affidavit of Harold Doyle dated 15 December 2021; and Affidavits of Trent White dated 14 September 2023, 3 November 2023 and 13 May 2024. 22 The applicant also relies on the following expert reports: Dr Fiona Powell, 'Iman Native Title Claim QUD 6162/1998 Anthropologist's Report' (prepared in seven stages from 22 December 2011 to 30 June 2013); Rosalind Kidd, 'The Iman People, Final Historical Report' filed on 21 December 2012; Dr Fiona Powell, 'Criteria for Claim Group membership' dated 5 July 2018; Dr Natalie Kwok, 'Iman #4 QUD413/2017 Part C Native Title Claim Southern and Western Boundaries' dated 27 January 2021; and Dr Natalie Kwok, 'Supplementary Report Iman #4 QUD413/2017 Native Title Claim' dated 30 November 2021. 23 In stage 6 of her report (prepared for the Iman #2 determination), Dr Powell states 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. 24 In stage 2 of her report, Dr Powell observes that the Iman Peoples' customary ritual practices, which have been handed down to the present generation by their forebears, including with respect to totemic and spiritual beliefs, ceremonies, social organisation, dispute resolution and decision making. 25 In Dr Kwok's report of 30 November 2021, she reviews the evidence of connection between the apical ancestors described in the Iman #2 determination and the proposed determination area in the present application, and concludes that: In my opinion the apical ancestors described in the Iman #4 claim represent the set of apical ancestors which capture that group of traditional owners who, united as Iman people, share interests across the whole claim area, even though, in keeping with Iman law and custom, internal differentiation can be observed between the degrees of attachment and authority held by different families and individuals relating to particular areas. 26 The native title holders are the Iman People. The Iman People are the descendants of one or more of the following people: Mary Arwa; Jim Waterton; Ada Robinson; Maggie Palmtree; Lizzie Palmtree; Eliza Shields; Mary Ann (mother of Maggie Dunn); Fanny Waddy/Sandy; Dick Bundi/Bundai and Alice Dutton; and The mother of John Serico (known as Aggie). 27 The evidence relied on, including the expert reports and the affidavits provided by the claimants, provide cogent evidence of the continuity of the traditional laws and customs of the Iman People extending back to before the time of sovereignty. The evidence supports the claim that the traditional laws acknowledged and the traditional customs observed give the Iman People the rights and interests set out in Orders 6 and 7 of the Orders.
The agreement reached between the parties 28 Section 87A(4) of the Act gives the Court the power to make an order consistent with the terms of a proposed determination of native title agreed between the parties to the proceeding without holding a hearing in relation to the application if the Court considers that: an order in, or consistent with, the terms of the proposed determination would be within its power; and it would be appropriate to do so. 29 The conditions under s 87A of the Act that enable the Court to make the determination without a hearing are: There is a proceeding in relation to an application for a determination of native title: s 87A(1)(a); At any stage of the proceeding after the end of the period specified in the notice given under s 66 of the Act, agreement is reached on a proposed determination of native title in relation to an area that is part of, but not all of, the area covered by the application: s 87A(1)(b); Certain persons are parties to the agreement, including "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": s 87A(1)(c); The terms of the proposed determination are in writing and signed by or on behalf of those parties: s 87A(1)(d); and The court is satisfied that an order in, or consistent with, the terms of the proposed determination, would be within its power and the Court considers it appropriate to make the orders sought: s 87A(4). 30 In considering whether it is appropriate to make the orders sought, the Court's role is confined to considering the evidence filed for the purpose of determining whether the parties have entered into an agreement that has been freely made on an informed basis: Nangkiriny (on behalf of the Karajarri People) v State of Western Australia (2002) 117 FCR 6 at [14]. The Court is not required to make a judicial determination of the merits of the claim: Button (on behalf of the Koa People) v State of Queensland [2021] FCA 1190 at [5]. In considering the appropriateness of the orders, the Court is directed to consider whether the parties to the agreement have acted rationally and in good faith: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [30]. 31 The requirements of the Act have been satisfied: There is a proceeding in relation to an application for a determination of native title: s 87A(1)(a). The period for notification of the application under s 66 of the Act has ended, and the parties to the proposed determination have recorded their agreement as to the terms of a determination of native title in relation to the proposed determination area: s 87A(1)(b) and (c). The parties to the proposed determination have recorded their agreement in a signed Minute of Consent: s 87A(1)(d). An order in terms of the Minute or consistent with the Minute would be within the Court's power because: The application has been made in accordance with s 61 of the Act; The application is for a determination of native title in relation to an area for which there are no other approved determinations of native title: s 13(1)(a); and the Minute agreed to by the parties complies with ss 94A and 225 of the Act: s 87A(4). 32 In addition, it is appropriate for the Court to make the orders sought because: The parties have freely entered into the agreement on an informed basis, having had the opportunity to consider and assess the evidence relied upon by the applicant. The parties have agreed as to the nature and extent of rights and interests, and the proposed determination is unambiguous and certain as to the rights and interests declared. There are no proceedings before the Court relating to native title determination applications that cover any part of the area that is the subject of this application. 33 In addition, it is appropriate for the Court to make the orders sought because: The parties have freely entered into the agreement on an informed basis, having had the opportunity to consider and assess the evidence relied upon by the applicant. The parties have agreed as to the nature and extent of rights and interests, and the proposed determination is unambiguous and certain as to the rights and interests declared. There are no proceedings before the Court relating to native title determination applications that cover any part of the area that is the subject of this application. 34 The terms of the proposed determination also satisfy the requirements of s 225 of the Act.
Prescribed Body Corporate 35 Section 55 of the Act relevantly provides that if the Federal Court proposes to make an approved determination of native title, and the determination is that native title exists at the time of making the determination, the Federal Court must, at the same time or as soon as practicable after it makes the determination, make a determination under ss 56 and 57 of the Act. 36 Section 56(1) of the Act requires that the Court must determine whether the native title is to be held in trust, and if so, by whom. The applicant has consented to orders determining that the native title is to be held in trust. The applicant seeks orders that the Wardingarri Aboriginal Corporation RNTBC (ICN 8305) is to be the prescribed body corporate for the purposes of ss 56(2)(b) and 56(3) of the Act. The Wardingarri Aboriginal Corporation holds the Native Title on trust for the Iman People resulting from the Iman #2 determination. The applicant relies on an affidavit of Colin Hardie which annexes a copy of a letter from Heather Toban, an Iman Person, and a member of the applicant claim group, formally nominating the Wardingarri Aboriginal Corporation as the prescribed body corporate in respect of the determination. 37 I am satisfied that the Wardingarri Aboriginal Corporation is a prescribed body corporate within reg 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). 38 It is appropriate to determine that the Wardingarri Aboriginal Corporation is to be the prescribed body corporate for the purpose of s 57 of the Act and perform the functions prescribed in s 57(3) of the Act.
Conclusion 39 The Court will make orders in accordance with the orders agreed by the parties. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.
SCHEDULE OF PARTIES QUD 413 of 2017 Respondents Fourth Respondent: MARANOA REGIONAL COUNCIL Fifth Respondent: WESTERN DOWNS REGIONAL COUNCIL Sixth Respondent: ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Seventh Respondent: TELSTRA CORPORATION LIMITED ABN 33 051 775 556 Eighth Respondent: AUSTRALIA PACIFIC LNG CSG MARKETING PTY LIMITED Ninth Respondent: AUSTRALIA PACIFIC LNG CSG PROCESSING PTY LIMITED Tenth Respondent: AUSTRALIA PACIFIC LNG CSG TRANSMISSIONS PTY LIMITED Eleventh Respondent: AUSTRALIA PACIFIC LNG GLADSTONE PIPELINE PTY LIMITED Twelfth Respondent: AUSTRALIA PACIFIC LNG PTY LIMITED Thirteenth Respondent: AZEEZA PTY LTD ACN 009 030 068 Fourteenth Respondent: BLUE ENERGY LIMITED ACN 054 800 378 Fifteenth Respondent: BRONCO ENERGY PTY LTD ABN 70 121 979 664 Sixteenth Respondent: EUREKA PETROLEUM PTY LTD ACN 107 185 222 Seventeenth Respondent: JEMENA DARLING DOWNS PIPELINE (1) PTY LTD (ACN 072 109 865) Eighteenth Respondent: JEMENA DARLING DOWNS PIPELINE (3) PTY LTD (ACN 127 059 152) Nineteenth Respondent: JEMENA QUEENSLAND GAS PIPELINE (1) PTY LTD (ACN 083 050 284) Twentieth Respondent: JEMENA QUEENSLAND GAS PIPELINE (2) PTY LTD (ACN 083 050 104) Twenty-First Respondent: KGLNG E&P PTY LTD ABN 31 146 143 339 Twenty-Second Respondent: KGLNG LIQUEFACTION PTY LTD (ABN 39 146 143 311) Twenty-Third Respondent: PAPL (DOWNSTREAM) PTY LIMITED (ABN 43 147 649 205) Twenty-Fourth Respondent: PAPL (UPSTREAM) PTY LIMITED ABN 58 131 318 888 Twenty-Fifth Respondent: PAPL (UPSTREAM II) PTY LIMITED ABN 90 146 203 901 Twenty-Sixth Respondent: NEW WILKIE ENERGY PTY LIMITED ACN 007 683 454 (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) Twenty-Seventh Respondent: SANTOS CSG PTY LTD ABN 72 121 188 654 Twenty-Eighth Respondent: SANTOS GLNG PTY LTD (ABN 12 131 271 648) Twenty-Ninth Respondent: SANTOS QNT PTY LTD ACN 33 083 077 196 Thirtieth Respondent: SANTOS QUEENSLAND, LLC (ABN 75 111 733 969) Thirty-First Respondent: SANTOS TOGA PTY LTD ABN 46 077 536 871 Thirty-Second Respondent: SANTOS TPY CSG, LLC Thirty-Third Respondent: SANTOS TPY, LLC Thirty-Fourth Respondent: SENEX ASSETS PTY LTD ACN 160 649 338 Thirty-Fifth Respondent: STUART PETROLEUM COOPER BASIN GAS PTY LTD ACN 130 588 055 Thirty-Sixth Respondent: SYNTECH RESOURCES PTY LTD ACN 095 102 971 Thirty-Seventh Respondent: TOTALENERGIES EP AUSTRALIA (ABN 96 832 035 151) Thirty-Eighth Respondent: TOTALENERGIES EP AUSTRALIA II (ABN 52 149 617 167) Thirty-Ninth Respondent: TOTALENERGIES GLNG AUSTRALIA (ABN 11 978 897 527) Fortieth Respondent: VICTORIA OIL PTY LTD ACN 010 514 119 Forty-First Respondent: WANDOAN HOLDINGS PTY LIMITED Forty-Second Respondent: AMPLITEL PTY LTD AS TRUSTEE OF THE TOWERS BUSINESS OPERATING TRUST ABN 75 357 171 746
Doyle on behalf of the Iman People #4
State of Queensland
RANGIAH J: 1 The applicant seeks a determination of native title pursuant to ss 61 and 225 of the Native Title Act 1993 (Cth) (the Act) on behalf of the Iman People. 2 A determination of native title has been previously made in favour of the Iman People: see Doyle (on behalf of the Iman People #2) v State of Queensland (2016) 335 ALR 201; [2016] FCA 743 (the Iman People #2 determination). 3 The parties have now indicated their consent to a determination that the Iman People hold native title rights and interests in the proposed determination area. 4 The proposed determination area covers the area set out at Order 3 of the Orders. The external boundaries of the proposed determination area cover approximately 204,439 ha of land and waters in south-west Queensland, between Miles and Injune. 5 The Court is satisfied, for the reasons below, that it is within the power of the Court to make the orders sought, and that it is appropriate to do so.
(2016) 335 ALR 201
(2001) 115 FCR 109
(2002) 117 FCR 6