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[2012] FCA 651
Federal Court of Australia
2012-06-22
Reeves J
Original judgment source is linked above.
Number of paragraphs: 27
Solicitor for the Applicant: T Wishart of Queensland South Native Title Services
Solicitor for the First Respondent: GR Cooper, Crown Solicitor
Solicitor for the Second, Third, Fourth and Sixth Respondents: J Humphris of MacDonnells Law
Solicitor for the Fifth Respondent: The Fifth Respondent appeared in person
Solicitor for the Seventh Respondent: C Lawrence of Ashurst Australia (Melb)
Solicitor for the Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth and Sixteenth Respondents: M Boge of Thynne & Macartney
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6027 of 2001
BETWEEN: KATHLEEN KEARNS, ERICA WALKER, BERNYS FAULKNER, BRADLEY SAUNDERS AND MARSHALL FOSTER ON BEHALF OF THE GUNGGARI PEOPLE #2
JUDGE: REEVES J DATE OF ORDER: 22 JUNE 2012 WHERE MADE: MITCHELL
Being satisfied that a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate to the Court to do so, BY CONSENT THE COURT DETERMINES THAT: 1. Native title exists in relation to the Determination Area. 2. The native title is held by the persons described in Schedule 1 (the "native title holders"). 3. Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to the Determination Area, other than in relation to Water, are the non-exclusive rights to: (a) access, be present on, move about on and travel over the Determination Area; (b) Camp on the Determination Area and, for that purpose, erect temporary shelters on the Determination Area; (c) take (including by hunting and gathering) and use Traditional Natural Resources from the Determination Area for personal, domestic and non-commercial communal purposes; (d) conduct religious and spiritual activities and ceremonies on the Determination Area; (e) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas, by lawful means, from physical harm; (f) teach on the Determination Area the physical and spiritual attributes of the Determination Area; and (g) light fires on the Determination Area for domestic purposes including cooking, but not for the purposes of hunting or clearing vegetation. 4. Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to Water within the Determination Area are the non-exclusive rights to: (a) hunt and fish in or on, and gather from, the Water for personal, domestic and non-commercial communal purposes; and (b) take and use the Water for personal, domestic and non-commercial communal purposes. 5. There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 6. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the native title holders. 7. The native title rights and interests referred to in paragraphs 3 and 4 do not confer the right to possession, occupation, use or enjoyment to the exclusion of all others. 8. The nature and extent of any other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 5. 9. The relationship between the native title rights and interests described in paragraphs 3 and 4 and the other interests described in Schedule 5 (the "Other Interests") is that: (a) the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests; and (b) the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests. 10. The words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined words and expressions: (a) "Application" means the native title determination application in the Federal Court of Australia proceedings QUD 6027 of 2001; (b) "Camp" does not include permanent residence or the construction of permanent structures or fixtures; (c) "Determination Area" means the land and waters described in Schedule 2 (which excludes the land and waters described in Schedule 3) and shown on the plan in Schedule 4, and to the extent of any inconsistency between the Schedules and the plan, the Schedules prevail; (d) "Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; (e) "Traditional Natural Resources" means: (i) "animals" as defined in the Nature Conservation Act 1992 (Qld); (ii) "plants" as defined in the Nature Conservation Act 1992 (Qld); and (iii) any clay, soil, sand, gravel or rock on or below the surface of the Determination Area, that have traditionally been taken and used by the native title holders; and (f) "Water" means water as defined by the Water Act 2000 (Qld). THE COURT ORDERS THAT: 11. Paragraphs 1 to 10 take effect upon the agreements referred to in paragraphs 3(d) and 4(a), (b), (c), (d) and (e) of Schedule 5 being registered on the Register of Indigenous Land Use Agreements. 12. Upon paragraphs 1 to 10 taking effect: (a) The native title is held in trust. (b) The Gunggari Native Title Aboriginal Corporation ICN 7725, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (i) be the prescribed body corporate for the purpose of s 56(1) of the Native Title Act 1993 (Cth); and (ii) perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate. 13. In the event that the agreements referred to in paragraph 11 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions. 14. Each party to the proceeding is to bear its own costs. SCHEDULE 1 - Native title holders The native title holders are the Gunggari People. The Gunggari People are the descendants of the following people: (a) Jinnegah; (b) Jimmy and Nelly Flourbag; (c) Harry Collins; (d) Old Frog; (e) Coombra Jack; (f) Kitty of St George and Maggie of the Moonie; (g) King Billy Dick; (h) Maria of Tongi Station; (i) Harry Rookwood; (j) Lucy of the Balonne River; (k) Charlotte Moffatt; (l) Mary of the Maranoa; (m) Nellie Walker; (n) Clifton George; (o) Mary of Bollon; (p) Kate Meadows/Meathers. SCHEDULE 2 - Areas where native title exists The Determination Area comprises all the land and waters described in column 1 of the following table and shown on the determination plan described in column 2 of the following table, excluding: (a) the areas described in Schedule 3; and (b) any area of land and waters on which a public work is, or was, established on or before 23 December 1996, and any adjacent land and waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. Area Description Determination Plan Description Part Lot 5244 on PH1377 Lot 2 on AP20085 Lot 2501 on PH2052 Lot 3 on AP20085 Part Lot 5105 on PH595 Lot 2 on AP20085 Part Lot 5140 on PH708 Lot 2 on AP20085 Lot 7 on UL65 Lot 2 on AP20085 Lot 6 on MAR42 Lot 25 on AP20085 Lot 8 on MAR3 Lot 26 on AP20085 Lot 6 on MAR19 Lot 23 on AP20085 Lot 2 on MAR24 Lot 28 on AP20085 Lot 7 on CP857801 Lot 27 on AP20085 Lot 28 on KE107 Lot 12 on AP20085 Lot 1 on KE16 Lot 5 on AP20085 Lot 8 on KE18 Lot 14 on AP20085 Lot 8 on KE29 Lot 4 on AP20085 Part of Lot 50 on KE6 Lot 6 on AP20085 Lot 49 on KE67 Lot 8 on AP20085 Lot 8 on KE70 Lot 8 on AP20085 Lot 30 on SP145274 Lot 11 on AP20085 Lot 4 on KE93 Lot 15 on AP20085 Lot 5 on KE94 Lot 13 on AP20085 Lot 11 on TM14 Lot 16 on AP20085 Lot 5 on TM16 Lot 19 on AP20085 Part of Lot 6 on TM17 Lot 20 on AP20085 Lot 10 on TM47 Lot 18 on AP20085 Lot 5 on TM53 Lot 21 on AP20085 Lot 7 on TM65 Lot 22 on AP20085 Lot 6 on TM67 Lot 22 on AP20085 Lot 9 on TM67 Lot 22 on AP20085 Lot 6 on UL13 Lot 1 on AP20085 Lot 2 on UL59 Lot 2 on AP20085 Part of Lot 21 on WV1334 Lot 7 on AP20085 Lot 13 on FTY1632 Lot 29 on AP20085 Lot 18 on FTY837 Lot 9 on AP20085 Lot 10 on AP20085 Lot 7 on MAR22 Lot 24 on AP20085 Lot 4 on USL42867 Lot 3 on AP20085 Lot 6 on TM3 Lot 17 on AP20085
SCHEDULE 3 - Areas excluded from the Determination Area
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6027 of 2001
BETWEEN: KATHLEEN KEARNS, ERICA WALKER, BERNYS FAULKNER, BRADLEY SAUNDERS AND MARSHALL FOSTER ON BEHALF OF THE GUNGGARI PEOPLE #2
JUDGE: REEVES J DATE: 22 JUNE 2012 PLACE: MITCHELL
REASONS FOR JUDGMENT 1 On 8 March 1996, Robert Munn on behalf of the Gunggari People lodged the first of two applications for recognition of their Native Title in the National Native Title Tribunal pursuant to the Native Title Act 1993 (Cth) ("the Act"). Following amendments to the Act in 1998, the application was transferred to the Federal Court and became proceeding QUD 6019 of 1998 Robert John Munn on behalf of the Gunggari People v State of Queensland & Ors. The application was amended on 23 August 2001 to divide the claim into Parts A and B. On 23 August 2002, leave was granted to remove Part B. Part A was dismissed on 30 November 2009 after the Applicant and the State entered into an Indigenous Land Use Agreement. That agreement was subsequently registered by the National Native Title Tribunal. 2 The current application was filed in the Federal Court on 23 August 2001 and following notification, it was referred to the National Native Title Tribunal for mediation on 5 August 2003. The claim covers an area of land and waters of approximately 13,600 square kilometres in the South Central region of Queensland roughly situated between the towns of Charleville, Mitchell, St George and Bollon as identified in Schedule 2 to the Orders as the Determination Area. This area had previously been Part B of QUD 6019 of 1998. 3 Since it was filed, the current application has been amended on four separate occasions, the most recent being on 15 December 2011. At that time substantial amendments were made, including the claim group description, the area of land and waters covered by the application, the description of the rights and interests and certification of the application by Queensland South Native Title Services. 4 Bearing in mind that the original application was commenced (albeit in a different form) in 1996, some sixteen years ago, it is a matter of concern that these proceedings have taken so long to be finalised. This is particularly so since, during that inordinately long period, some members of the Gunggari People have passed away. Those persons had detailed knowledge of their people's traditional laws and customs and their connection to the claimed land and waters. One of them, Robert Munn, the original applicant in this and the earlier Gunggari application, worked tirelessly to ensure that his people were the recognised native title holders for the Determination Area. As the Gunggari People were without legal representation between 2002 and 2007, he attended the directions hearings to represent their interests and was an important informant for the various anthropologists who have worked with the Gunggari People. 5 In this respect I endorse the observations of Rares J in Prior on behalf of the Juru (Cape Upstart) People v State of Queensland & Ors (No 2) [2011] FCA 819 (at [32]) as follows: Delays of the kind experienced in this litigation cannot be tolerated. Justice delayed is justice denied. As Lord Hailsham of St Marylebone LC said in Reg v Lawrence [1982] AC 510 at 517B: "Where there is delay the whole quality of justice deteriorates." As his Honour went on to observe, in recent years, particularly since the 2009 amendments to the Act and the introduction of Pt VB to the Federal Court of Australia Act 1976 (Cth), the Court has sought to use its case management powers to attempt to reduce and avoid these sorts of delay occurring in native title proceedings. The Court has also adopted a national, State and Territory priority listing of native title proceedings to attempt to ensure that its native title list is dealt with as justly, quickly, inexpensively and efficiently as possible. This application was one of those that were given priority for determination by a consent determination. 6 Since 2010, the parties in these proceedings, the applicant, the State of Queensland, the Balonne and Murweh Shire Councils and the Maranoa Regional Council, Ergon Energy Corporation, Telstra Corporation, pastoralists and an indigenous respondent have been involved in long and complex negotiations culminating in my decision today when the Court will recognise the Gunggari People's rights and interests over the Determination Area. 7 The parties have informed the Court that they have now reached agreement to resolve the application and they have requested that the Court make a determination of native title in the terms of the s 87 Agreement filed on 12 June 2012 (the "s 87 Agreement").
section 87 of the native title act 8 The power of the Court to give effect to the parties' agreement is founded on s 87 of the Act. In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 ("Nelson"), I set out the various conditions that the parties needed to meet in order to have the Court make a consent determination of native title under s 87: see at [3]-[4]. The first three of those conditions, and the evidence that shows the parties to these proceedings have complied with them, are as follows: The notice period under s 66 of the Act must have ended before the written agreement of the parties is filed with the Court: s 87(1). By order of Emmett J on 23 August 2001, the parties who had been respondents in QUD 6019 of 1998, became respondents to this application. In addition, this application was again notified by the National Native Title Tribunal. As the three month notification period relating to this application ended on 25 September 2002, this condition has been met. The agreement of the parties must relate to the whole of the proceedings, part of the proceedings, or a matter arising out of the proceedings: s 87(1)(a). As the proposed orders in the s 87 Agreement relate to the whole of the proceedings, this condition, too, has been met. Section 87(1)(b) of the Act requires that the agreement must be reduced to writing, signed by the parties, and filed with the Court. The s 87 Agreement demonstrates that each of these aspects has been met. 9 Section 87(1)(c) provides that the Court must be satisfied that an order in the terms of the s 87 Agreement (or consistent with those terms) would be within the power of the Court: This condition will be satisfied where: the terms of the proposed orders comply with s 94A of the Act; the rights and interests proposed to be recognised are capable of recognition by the common law of Australia; and there is no other determination of native title in existence over the area the subject of the proposed determination. 10 Section 94A requires the Court, in making a determination, to set out the details of the matters mentioned in s 225 of the Act. Section 225 outlines the content of a determination of native title as: 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.) 11 I have examined the proposed orders in the s 87 Agreement and I am satisfied that each of the matters referred to in s 225(a) to (e) of the Act (see [10]) is appropriately articulated therein. 12 The final condition the parties need to meet in order to have the Court make a consent determination of native title relates to the operation of s 87(1A). That section essentially requires the Court to decide whether it is appropriate make a determination in terms of the parties' agreement. 13 Emmett J, in the first Gunggari application, found that the words in s 87(1A) 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 (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 at [26] and [28]. 14 In Nelson (at [5]-[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining that question. Beyond setting out the concluding summary, it is not necessary for me to repeat that process here. The concluding summary was as follows (at [14] but excluding case references): 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… 15 The parties have reached their agreement after considering the extensive anthropological material prepared by Dr Natalie Kwok. The applicant relies on the following reports ("the Reports") that were filed on 11 May 2012: (a) Dr Natalie Kwok (October 2009) Pre-Sovereignty Gunggari Society Summary of Evidence; (b) Dr Natalie Kwok (July 2010) Gunggari Connection Report (Stage Two); (c) Statement by Natalie Kwok on the Level of Gunggari Society; and (d) Dr Natalie Kwok (2010) Gunggari Genealogies. 16 I have been assisted by this material and I have also considered the submissions filed by the applicant on 14 May 2012. 17 The applicant relies on this material to support the following non-exclusive native title rights (other than in relation to the use and enjoyment of Water) over the Determination Area, which is described in Schedule 2: (a) access, be present on, move about on and travel over the Determination Area; (b) camp on the Determination Area and, for the purpose, erect temporary shelters on the Determination Area; (c) take (including by hunting and gathering) and use Traditional Natural Resources from the Determination Area for personal, domestic and non-commercial communal purposes; (d) conduct religious and spiritual activities and ceremonies on the Determination Area; (e) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas, by lawful means, from physical harm; (f) teach on the Determination Area the physical and spiritual attributes of the Determination Area; and (g) light fires on the Determination Area for domestic purposes including cooking, but not for the purposes of hunting or clearing vegetation. Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to Water within the Determination Area are the non-exclusive rights to: (a) hunt and fish in or on, and gather from, the Water for personal, domestic and non-commercial communal purposes; and (b) take and use the Water for personal, domestic and non-commercial communal purposes. 18 I am satisfied that the steps taken by the applicant as described in the materials filed in support of the determination, together with the fact that all parties have had the advantage of competent legal representation, indicate that their agreement is free and informed. I am also satisfied that the terms of the s 87 Agreement are unambiguous and clear.
THE native title HOLDERS 19 Notwithstanding this finding, I consider it is appropriate to record some of the anthropological evidence and the evidence of the applicants that go to establish that native title exists in the Determination Area. As in Nelson (see at [18] and following), I do not do this to second guess the process that has been followed by the parties as outlined above, but to give 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. 20 The determination recognises that native title is held by the descendants of the following people: a. Jinnegah b. Jimmy and Nelly Flourbag c. Harry Collins d. Old Frog e. Coombra Jack f. Kitty of St George and Maggie of Moonie g. King Billy Dick h. Maria of Tongi Station i. Harry Rookwood j. Lucy of the Balonne River k. Charlotte Moffatt l. Mary of Maranoa m. Nellie Walker n. Clifton George o. Mary of Bollon p. Kate Meadows/Meathers 21 Dr Kwok provides a moving history of the Gunggari apical ancestors in the Connection Report. Her genealogies contain clearly identified descent groups who are able to trace their ancestry, from first contact to the present day. She finds that under traditional law and custom rights of membership of Gunggari society are conferred by descent. I am satisfied that the genealogies support the composition of the claim group. 22 Dr Kwok says at page 6 of her Pre-Sovereignty Report that "clear and consistent evidence emerges…of a named language group (the Gunggari claimant's [sic] predecessors) being in occupation of the claim area at and from the time of early contact". She further opines in her Connection Report (Stage Two) at [573] that: Despite the odds, determined efforts on the part of the Gunggari to maintain knowledge of country, of kin and countrymen, and of Gunggari law and custom - both on country and at a remove - ensured the survival of Gunggari society. Present Gunggari society may be seen as substantially continuous with that existing at presovereignty. I am satisfied that the Gunggari People have provided sufficient evidence to establish a continuing connection to the Determination Area. 23 The Pre-Sovereignty Report and the Connection Report provide a detailed history of white settlement and its impact on the Aboriginal People of the region. The first recorded contact with Europeans was by Major Thomas Mitchell who passed through the Maranoa region in 1846 and Ludwig Leichhardt followed in 1847. A number of anthropologists, linguists and ethnographers, including EM Curr, Archibald Meston, the southern Protector of Aborigines, RH Matthews and AW Howitt, Caroline Tennant Kelly and Norman Tindale recorded their observations of the Gunggari People providing evidence of the exercise of traditional laws and customs. Dr Kwok has referred to this extensive material in her Reports. 24 Dr Kwok at paras 420 to 564 of the Connection Report provides a detailed examination of the continued acknowledgement and observance of a range of laws and customs in respect to language, cultural knowledge, totemic and spiritual beliefs, sites, moral values, dispute resolution, decision making and resource use. I am satisfied that this evidence supports the rights and interests that the Court will recognise in the determination.
Nomination of a prescribed body corporate 25 Section 55 of the Act requires the Court to either make a determination where the native title is held on trust as contemplated by s 56 of the Act or a determination for the purposes of s 57 of the Act. Section 56 of the Act 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. (Emphasis in original.) 26 The parties have agreed in the determination that the native title is to be held on trust, and the applicant has nominated the Gunggari Native Title Aboriginal Corporation ICN 7725 (the "Corporation") to be the prescribed body corporate for the purposes of s 56(1) of the Act and perform the functions mentioned in s 57(1) of the Act after becoming a registered native title body corporate. The Corporation was registered on 14 May 2012. The applicant has filed all relevant material, setting out the steps taken to satisfy the requirements of s 57 of the Act.
conclusion 27 The achievement of a settlement of a native title claim by agreement is to be encouraged and congratulated. I am satisfied that it is within the power of the Court to make the orders sought and that these orders give recognition under the laws of Australia, to the traditional rights and interests arising from traditional laws acknowledged and the traditional customs observed of the Gunggari People. But it is important to note that these orders do not grant native title to the claimants, they merely recognise the native title that they have long held. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
Kearns on behalf of the Gunggari People #2
State of Queensland