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[2012] FCA 800
Federal Court of Australia
2012-08-01
Ms J, Logan J
Original judgment source is linked above.
THE APPLICATION OF SECTION 87 TO THE CURRENT NATIVE TITLE APPLICATIONS 21 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 6 September 2006; (b) The parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i)); (c) The parties have recorded their agreement in those short minutes of consent (s 87(1)(b)); (d) An order in terms of or consistent with those short minutes would be within the Court's power because: (i) The Applications are valid and were made in accordance with s 61 of the Act; (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) Searches of land tenure, mining and other relevant interests have been obtained to determine the extent of "other interests" within the proposed determination area and provide copies of those searches to all parties; (iii) The Respondents have provided all parties with a list their interests in the land which affect native title; (iv) The parties have agreed the nature and extent of interests in relation to the determination area and those interests are described in order 1 and in Schedule 1 to the determinations; (v) There are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the Application which would otherwise require orders to be made under s 67(1) of the Act (s 87(1) and s 87(2)); (vi) The State of Queensland has played an active role 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. 22 The State's assessment process has included the assessment of extensive material showing the connection of the claim group with the country the subject of the determination. That material included anthropological reports provided by Dr Alison Pembroke who was engaged by the applicant and which addressed the native title assessment requirements of the State of Queensland's Department of Environment and Resource Management. Ultimately, the parties reached agreement that the native title claim group named in Schedule 5 of the determination and in the connection material are the persons who hold the claimed native title rights and interests in the determination area. As noted above, that primary material has been filed. In my view, it justifies the approach taken by the State and the other respondent parties. 23 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 and with the non-trust function of prescribed bodies corporate. The proposed determination provides that the native title is not to be held on trust. It provides for an Aboriginal corporation, the Gugu Badhun Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. As that body corporate was registered on 3 May 2012 it will also perform the functions mentioned in s 57(3) of the Act. 24 The Court notes that the body corporate has filed a Notice of Nomination and Consent of the Prescribed Body Corporate on 17 July 2012 which satisfies the requirements of s 57(2) of the Act. 25 Finally, it is worth recording that agreements of the kind that have brought about today's hearing and determination 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. The parties and their advisers are to be commended for the consensual resolution of this native title proceeding. 26 For the reasons given, the Determination is now made. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.
Hoolihan on behalf of the Gugu Badhun People #2
State of Queensland
REASONS FOR JUDGMENT 1 The applications that are the subject of these proceedings are for the determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the land described in Schedule 1 to the proposed determinations. 2 The application encompasses land in the Upper Burdekin region of Far North Queensland, west to the Great Diving Range and north of Charters Towers. This application includes within it the town of Greenvale and the Valley of Lagoons. 3 One of the objectives of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in the amendments to s 87 of the Act by the Native Title Amendment Act 2009 (Cth). 4 The properties over which the proposed consent determination will be granted are described in more detail in the maps in Schedule 1 to the determination. 5 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made by Mansfield J in King v Northern Territory of Australia [2011] FCA 582 (King) about the preamble to the Act. I am in complete agreement with His Honour's observations. Those observations are just as apposite in the present case, where the parties promote by consensual resolution that it is appropriate for the Court to make a determination and related orders pursuant to s 87 of the Act. Mansfield J observed of the Act's preamble: [6] 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. 6 A native title claim which lingers undetermined on a court list is an affront to our system of justice. There is no doubt that the Parliament expected that many, if not most, native title claims would be consensually resolved. Translating that expectation into reality in this matter has required active case management by the Court, especially via its registrars. It has also required careful attention by the applicant to the requirements for the proof of native title and a realistic appraisal both by them and by respondents of a claim's prospects of success. In this the legal advisers to a party have a vital role to play. There is therefore every reason today for the Gugu Badhun people and the wider community to be grateful to Mr Martin Dore, Principal Legal Officer, North Queensland Land Council and his staff for the way in which these claims have now been brought to finality. In like fashion, the Crown Solicitor for Queensland and his staff are to be commended. While it falls to each respondent to a native title claim to take its own legal advice, there is no denying that the State plays a leadership role so far as respondents are concerned in the assessment of the merits of a claim. Such cases demand acute attention to model litigant obligations. The making of this determination following an agreement is also proof that those who have separately advised local government and public utilities have conspicuously discharged their professional obligations. 7 A native title claim can be fraught with the potential for creating tension and anxiety amongst those with private interests in land the subject of a native title claim, particularly pastoralists. Recognising this in the aftermath of Wik Peoples v Queensland (1996) 187 CLR 1, the Commonwealth Government made provision for legal aid to be furnished to such persons. The representation and advice thus made available, if responsibly undertaken, as it has been to my observation in these matters by Mr Boge of Thynne and Macartney, can and does do much to dispel the tensions and anxiety to which I have referred and to result in the efficient progress and consensual resolution of a native title claim. I very much doubt that such resolution, with all of the considerable savings in public money that entails, would be possible without the availability of such advice. 8 The applicant has filed the following documents principally relied upon in the proceeding: (a) Dr Alison Pembroke, 'Gugu Badhun Native Title Claim QUD85/2005 - Connection Report' ("Connection Report") dated December 2010 filed on 19 July 2012; (b) Affidavit of Mr Frank Gertz sworn on 10 December 2010 and filed on 19 July 2012; (c) Affidavit of Mr Frank Gertz sworn on 26 April 2012 and filed on 19 July 2012; (d) Affidavit of Mr Harry Gertz sworn on 13 March 2005 and filed on 22 March 2005; (e) Affidavit of Mr Harry Gertz sworn on 27 April 2012 and filed on 19 July 2012; (f) Affidavit of Mr Harry Gertz sworn on 27 April 2012 and filed on 19 July 2012; (g) Affidavit of Mrs Aisla Snider sworn on 22 May 2012 and filed on 19 July 2012; (h) Affidavit of Mrs Aisla Snider sworn on 22 May 2012 and filed on 19 July 2012; (i) Affidavit of Mr Ernest Hoolihan sworn on 27 April 2012 and filed on 19 July 2012; (j) Affidavit of Mrs Flora Hoolihan sworn on 14 December 2010 and filed on 19 July 2012; (k) Affidavit of Mrs Margaret Gertz sworn on 27 April 2012 and filed on 19 July 2012; (l) Affidavit of Mrs Margaret Gertz sworn on 27 April 2012 and filed on 19 July 2012; (m) Affidavit of Ms Narda Kennedy sworn on 22 June 2012 and filed on 19 July 2012; (n) Affidavit of Mr Noel Gertz sworn on 27 April 2012 and filed on 19 July 2012; (o) Affidavit of Mr Derek Hoolihan affirmed on 13 July 2012 and filed on 19 July 2012; (p) Affidavit of Ms Hazel Illin sworn on 27 April 2012 and filed on 19 July 2012; (q) Affidavit of Mrs Elsie Thompson worn on 27 April 2012 and filed on 19 July 2012; (r) Amended native title determination application (Form 1), amended pursuant to orders made on 27 July 2012; (s) Amended proposed orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 1 August 2012; (t) Submissions satisfying s 57 of the Act filed on 17 July 2012; (u) Amended outline of submissions in support of the proposed consent determination filed on 25 July 2012; and (v) Notice of Nomination and Consent of the Prescribed Body Corporate filed on 17 July 2012.
SECTION 87 OF THE ACT 9 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))); and (d) The Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)). 10 Having satisfied those criteria relevantly detailed, the Court must consider the making of orders and if 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) or s 87(3) and, if relevant, s 87(5). 11 The necessary considerations pertaining to whether it is appropriate for me to exercise a discretionary power and to make the orders sought are aptly expressed by Reeves J in the decision of Nelson v Northern Territory of Australia (2010) 190 FCR 344. His Honour stated: [7] The words in s 87(1A): "… if it appears to the Court to be appropriate to do so …" have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229 ("Munn") at [26] and [28]. [8] In considering the effect of these words, it is important to identify what it is that s 87(1A) requires the Court to consider appropriate. The wording of the section makes it clear that the question for the Court is whether it is appropriate to make an order in the terms of the agreement reached between the parties. Therefore the central focus of the section is that agreement: Lovett v Victoria [2007] FCA 474 ("Lovett") at [37]; Nangkiriny v Western Australia (2002) 117 FCR 6; [2002] FCA 660 at [8]; James v Western Australia [2002] FCA 1208 at [4]; Ward v Western Australia [2006] FCA 1848 at [9]; Cox v Western Australia [2007] FCA 588 at [12]; Brown v Western Australia [2007] FCA 1025 at [23]; Hughes v Western Australia [2007] FCA 365 at [9]; Kogolo v Western Australia [2007] FCA 1703 at [18] and Eringa v South Australia [2008] FCA 1370 ("Eringa") at [33]. [9] As North J said in Lovett: … 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 …. (emphasis added) [10] It follows that the critical issue is whether the existence of a free and informed agreement is founded in fact, not whether the matters dealt with in the agreement, specifically the existence of native title, are founded in fact. In Eringa, Lander J expressed it thus: … the Court adopts a different approach to the task of deciding whether it is appropriate to enter a determination reached by agreement than it brings to the task of deciding whether native title should be recognised in a contested matter. In each case the definition of native title is the same. The Act requires the Court to set out details of the matters mentioned in s 225 in all determinations whether reached by agreement or contest. Although there needs to be some foundation upon which the Court can exercise its jurisdiction, in matters in which the parties have reached agreement on the terms of a determination the Court will have particular interest in whether the agreement has been freely entered into and on an informed basis …. If that question is answered in the affirmative, the Court will consider the fact that an agreement has been reached as weighing in favour of the making of a determination of native title … (emphasis added) [11] In other words, if the material filed by the parties in support of the consent determination establishes a free and informed agreement, the Court will infer the existence of the native title that is at the heart of that agreement. I have emphasised the word "informed" because the process the State respondent party follows to inform itself is critical to this issue. In Munn, Emmett J observed that the Court's deliberations on an application under s 87: … would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. (emphasis added) 12 By the operation of s 87(1A), it is relevant, as the applicant's submissions reveal, that I direct consideration only to s 87(2) of the Act. Even so, the Court is not required to make its own inquiry of the merits of the applicant's 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].
(2002) 214 CLR 422
(2010) 190 FCR 344
(1996) 187 CLR 1
(2001) 115 FCR 109
(2002) 117 FCR 6