Fisher on behalf of the Ewamian People #2 v State of Queensland

Federal Court of Australia|2013-11-26|Before: Logan J

THE APPLICATION OF SECTION 87 TO THE WESTERN YALANJI PEOPLE CLAIMS 32 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 ended on 20 June 2001 for QUD6009/1999, and 27 February 2002 for QUD6018/2001; (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 33 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. 34 As to the proposed determinations, Mr Doré has deposed in his affidavit sworn and filed on 29 October 2013, the native title is not to be held on trust. It provides for an Aboriginal corporation, the Tatampi Puranga Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. The Tatampi Puranga Aboriginal Corporation was registered on 8 October 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. 35 The Court notes that Mr Doré has further filed on 12 November 2013 a Notice of Nomination and Consent of Tatampi Puranga Aboriginal Corporation as the Prescribed Body Corporate, which satisfies the requirements of s 57(2) of the Act. 36 The Tatampi Puranga 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). 37 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. 38 For the reasons given, the Determinations are now made. I certify that the preceding thirty-eight (38) 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)s 87

(Cth), the Telecommunications Act 1975(Cth)

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

(Cth), the Telecommunications Act 1991(Cth)

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

Petroleum and Gas Act 2004(Qld)

Integrated Planning Act 1997(Qld)

Sustainable Planning Act 2009(Qld)

Fire and Rescue Service Act 1990(Qld)

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

Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 considered Hoolihan on behalf of the Gugu Badhun People #2 v State of Queensland [2012] FCA 800 considered King v Northern Territory of Australia [2011] FCA 582 applied Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 applied Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 applied Moses v State of Western Australia [2007] FCAFC 78 applied Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 applied Smith v State of Western Australia (2000) 104 FCR 494 applied Wik Peoples v Queensland (1996) 187 CLR 1 applied

Fisher on behalf of the Ewamian People #2 v State of Queensland [2013] FCA 1249 CORRIGENDUM 1. On page 12 of the Reasons for Judgment, in the heading at the top of the page the word "Western Yalanji" should read "Ewamian", therefore the heading should read "The Application of Section 87 of the Ewamian People Claims". I certify that the preceding one (1) numbered paragraph is 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 Ewamian People, represented by 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 that are the subject of these proceedings, QUD6009/1999, "Ewamian People # 2" and QUD6018/2001, "Ewamian People # 3", are for the determination of native title rights and interests under the Act in favour of the native title holders of land and waters within the bounds of the land described in the Schedules to the proposed determinations. 3 The State of Queensland, Tablelands Regional Council, Etheridge Shire Council and various pastoralists are respondent parties to the applications. 4 The applications are being heard together as they are geographically proximate and entail consideration of materially the same anthropological evidence concerning the Ewamian People. The applicants seek a determination of native title on behalf of the Ewamian People over various lands and waters in the savannah area of Queensland west of the Great Dividing Range, including the Townships of Georgetown, Forsyth, Mt Surprise and Einasleigh. 5 The properties over which the proposed consent determinations will be granted are described in more detail in the maps contained in the various Schedules to the determinations in each application. As those maps reveal, the Ewamian # 2 claim is a 'lot specific' claim in the sense that a number of discrete allotments defined by lot on plan descriptions covering a total approximate area of 186.1159 sq km comprise the claim. The Ewamian # 3 claim is a broad based country claim, subject to certain stipulated exceptions, covering an area of 28, 485.2912 sq km. 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 last year in Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800 and Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801, I have 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. Over the now five 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 has since announced the restoration of that funding. 9 Such value judgments 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 last year (Echoes of Mabo: AIATSIS Native Title Conference, 6 June 2012, Speech by the Honourable Nicola Roxon MP, Attorney-General, 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 this year in 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 Further, 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). 11 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. 12 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. 13 The applicants have filed the following documents relevant to the consent determinations in the applications: (a) Affidavit of Mr Martin Doré, filed on 14 October 2013, annexing: (i) the Certificate of Incorporation of a Registered Native Title Body Corporate - the Tatampi Puranga Aboriginal Corporation ICN 7950 (the Corporation); and (ii) the Rules of the Corporation. (b) Outline of Submissions on behalf of the Applicant in support of the Corporation to be the Prescribed Body Corporate under s 57 of the Act, filed on 28 October 2013; (c) Affidavit of Mr Martin Doré, filed on 29 October 2013; (d) Affidavit of Mr Martin Doré, filed on 30 October 2013, annexing: (i) An amended copy of the Rules of the Corporation; (e) Notice of Nomination and Consent of the Prescribed Body Corporate, filed on 12 November 2013; (f) Affidavit of Mr Martin Doré, filed on 5 November 2013, annexing: (i) the "Connection Report", prepared by Dr Sandra Pannell dated February 2004 (Pannell 2004); (g) Affidavit of Mr Martin Doré, filed on 5 November 2013, annexing: (i) the "Executive Summary of Connection Materials", prepared by Dr Sandra Pannell, dated June 2012 (Pannell Exec Summary 2012); (h) Outline of Submissions on behalf of the Applicant in support of the proposed consent determinations, filed on 5 November 2013; (i) Agreement under s 87 of the Act and draft consent determination orders filed by the State of Queensland on 26 August 2013 (QUD6009/99); and (j) Agreement under s 87 of the Act and draft consent determination orders filed by the State of Queensland on 26 August 2013 (QUD6018/01).

SECTION 87 OF THE ACT 14 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. 15 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. 16 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]. 17 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 18 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] 19 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. 20 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. 21 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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