Hoolihan on behalf of the Gugu Badhun People #2 v State of Queensland

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.