Lampton on behalf of the Juru People v State of Queensland

Federal Court of Australia|2014-07-11|Before: Rares J

Background 11 The Juru people authorised Carol Prior, Raymond Lampton, Colleen Power, Raylene Oui, Tanya Chatfield, Iris Glenbar, Raymond Gaston and Lenora Aldridge to be the applicant to seek this consent determination under the Act. In the Cape Upstart consent determination the apical ancestors of the Juru people were Emily Pickard, Con Lymburner, Nellie Steel/Stell, Lena Taylor, William Morrell and his wife, Bessie Rook, Jinnie Ross, and Eliza Lampton (the mother of Arthur Lampton). At meetings on 19 and 20 October 2013, the Juru people authorised, under s 251B of the Act, the addition of a further apical ancestor, Rosie Wake, to the persons whom I have just mentioned. As a result of those meetings, an amended form 1 application was filed. That changed the description of the apical ancestors and substituted the current members of the application: Smallwood v State of Queensland [2014] FCA 331. 12 Recently, on 27 June 2014, Ms Prior applied to be joined as a respondent. Like Dowsett J, I accept that Ms Prior was seeking to act in accordance with what she considered were the best interests of the Juru people. Ms Prior claimed that she wished to investigate, and possibly challenge, the appropriateness of including Lena Taylor as an apical ancestor in the description of the claim group. Lena Taylor has been included as an apical ancestor in the Cape Upstart matter and in this one. Dowsett J decided that Ms Prior had accepted her authorisation to act as a member of the applicant on the basis that Lena Taylor was properly included as an apical ancestor. Because Ms Prior was not prepared to act on that basis, his Honour found that she was acting inconsistently with the express terms of her authorisation to act as a member of the applicant. Dowsett J considered that this meant that she was unwilling to act as a member of the applicant in accordance with the terms of the authorisation resolution passed at those claim group meetings. On 7 July 2014, his Honour removed Ms Prior as an applicant and substituted Mr Vincent Mundraby under s 66B of the Act and the terms of that authorisation resolution. 13 This turn of events was very unfortunate. One reason for Ms Prior's sense of grievance was that, although she was a member of the applicant, the Land Council or the solicitors for the applicant had refused to give her a copy of the connection reports. I agree with what Dowsett J said in his oral reasons given on 7 July 2014 about this aspect. In ordinary circumstances, as a member of the applicant, Ms Prior was entitled to receive a copy as of right. She was one of the persons comprising the applicant, being the party to the litigation, who had to make decisions about its conduct. Like Dowsett J, I accept that there may be circumstances where some confidential information might need to be redacted or withheld from a connection report. However, in the usual circumstances of native title proceedings, it is difficult to conceive of any legitimate justification for a representative body or the applicant's solicitor to refuse to give each member of an applicant his or her own copy of material as fundamental to the conduct of native title proceedings as a draft or final version of a connection report that is proposed to be used for the purpose of the conduct of the proceedings. 14 The Juru are gudjuda, being their language name for saltwater people. The gubulla munda, or carpet snake, is their totem, based on their dreaming story. One of the elders, Renarta Prior, explained in her evidence that the Juru people believe that the gubulla munda came from the ocean and moved through the waters out to the Great Barrier Reef. They believe that the gubulla munda left his droppings, and that these created the islands in the determination area. They also believe that the snake rested on dry land where he sweated, which led to the formation of rivers and creeks. Next, the dreaming story continues with the snake returning to the sea where he shed his skin, thus creating the reefs with their many colours. Ms Prior said that the Juru take care of the reefs because they are part of their spiritual dreaming. 15 As I described in the Cape Upstart judgment [2011] FCA 819 at [8]-[10], [15]-[18] and [23], Dr Sandra Pannell compiled a detailed draft anthropological connection report. Later, in 2011, she made some minor amendments to, and prepared an executive summary of, her report. Dr Pannell opined that the expression 'Juru' broadly denoted three elements of social and cultural identity, first, a traditional way of speaking, secondly, a bloodline connection to Juru country through descent from an Aboriginal apical ancestor, and, thirdly, a defined area of land and waters. She opined that the bloodline law was "…foundational law … acknowledged and observed" by both the Juru people and the wider Birri Gubba society of which they were a part: Prior [2011] FCA 819 at [8]-[10]. Dr Pannell opined that Juru people regarded bloodlines as being based on biological kinship connections in contrast to 'adoptive' or 'step' relations. 16 Subsequently, North Queensland Land Council commissioned Dr Kevin Mayo, another anthropologist, to provide a report as to whether four particular family groups were Juru according to descent or, if relevant, adoption under the claim group's laws and customs. Relevantly, he considered whether the Nicol/Power family group's claims, as descendants of Rosie Wake, were also capable of being included as part of the claim group. I discussed other aspects of his report, and Dr Pannell's review of part of it, in Prior on behalf of the Juru People v State of Queensland [2014] FCA 332. 17 Dr Mayo suggested that the claim group ought to consider including Rosie Wake as an apical ancestor of its membership. He said that he based this suggestion on available archival records that indicated an association of Rosie Wake's descendants with the claim area dating from at least the end of the 19th century, together with statements by her descendants and acknowledgement by some members of Aboriginal families also associated with the claim area. However, Dr Mayo's report did not express a final opinion about the anthropological position of Rosie Wake as an apical ancestor of the persons entitled to comprise the claim group for the Juru people's land and waters. The evidence is not very clear, let alone conclusive, as to whether Rosie Wake herself was Juru within the bloodline law. Nonetheless, after considering Dr Mayo's qualified report, the authorisation meeting held in October 2013 resolved to accept that Rosie Wake should be added as an apical ancestor. 18 The State and all the parties have also agreed to the consent determination proceeding on the basis that the descendants of Rosie Wake are part of the Juru people claim group entitled to the native title rights and interests that will be recognised today. I am satisfied that this is an appropriate foundation for the Court to give effect to the parties' agreement that Rosie Wake ought to be included as an apical ancestor of the Juru people. 19 I have also considered the evidence of members of the claim group, Renarta Prior, Carol Prior, Cecilia Prior, Diana Ross, Raylene Oui, Jeanette Pryor, William Morrell and James Gaston, together with the reports of Dr Pannell and Dr Mayo. This evidence included material identifying interactions between the indigenous peoples and Europeans that began with Captain Cook's voyage and have continued since. There are substantial recorded accounts that, in 1861, white settlers began displacing the Aboriginal inhabitants in this part of North Queensland. But, there had been earlier, more peaceful, contacts between the indigenous inhabitants and white sailors near Cape Upstart in 1839 and 1843. 20 Interestingly, Dr Pannell set out what happened to a shipwrecked sailor, James Morrill, whose ship was lost near Cape Upstart in 1846. He was taken in by, and lived with, a number of tribes until 1863. He learnt eight of their different dialects as he moved among the tribes. He attended gatherings of tribes, including one occasion when he estimated over 1,000 people were at a corroboree. Morrill recorded the 'native name' of the Burdekin River as 'Mall Mall'. He said that, for a time, he had lived with a tribe in the area of Port Denison. That was the previous name of the town of Bowen, where the Court sits today. 21 Dr Pannell opined, on the basis of her and others' research, that the rights and interests in the land and waters that are claimed by the Juru people are possessed by them under their traditional laws that they acknowledge and the traditional customs that they observe. She concluded that the Juru people have continued, from before the time of European settlement in 1861 to the present, to acknowledge and observe traditional laws and customs and that, by those laws and customs, the Juru people have a connection with the land and waters the subject of the proposed determination.

Jurisdictional findings 22 A determination of native title affects the status of the land and waters to which it relates because it creates rights and interests in them that, subject to the Act and the terms of the determination itself, the holders can exercise forever after against any other person, including the Commonwealth and the State: cf Alyawarr 145 FCR at 463 [70]. Because a consent determination, just as a determination after a fully contested hearing, creates this status, the Court must be careful to ensure that the State, as representative of the community generally, has itself played an active role in carefully evaluating the material and evidence on which its consent is based. 23 The State's evidence demonstrated that it has undertaken that responsibility appropriately. It caused Dr Pannell's report to be reviewed by both a senior anthropologist employed by the Aboriginal and Torres Strait Islander Land Services branch of the Department of Natural Resources and Mines and a principal lawyer employed by Crown Law. That review had the purpose of enabling the State to determine whether it considered that there was a credible basis for the claims made by the applicant in those proceedings and whether the requirements of s 223(1) of the Act had been met. The principal lawyer also had regard to the affidavits of William Morrell that were part of the form 1 application, Dr Pannell's executive summary of her report, another report and my reasons in the Cape Upstart case [2011] FCA 819. The anthropologist and principal lawyer then conferred with other officers of the Department. Next, the State and the Land Council exchanged requests and information, which the State considered in detail. 24 The State considered Dr Mayo's report and other material concerning the addition of Rosie Wake as an apical ancestor of the claim group. Junior counsel reviewed that material. On 14 May 2014, the State indicated that it agreed to her inclusion as an apical ancestor. The State also undertook a truncated tenure analysis of readily available materials relating to parcels of land within the areas claimed. The applicant and the State agreed that it was not necessary to investigate the tenure details of parcels of freehold land within the claimed areas because of the operation of s 61A(2) of the Act. 25 As a result of its considerations and the information it obtained, the State decided to enter into the agreement for this consent determination on the basis that it would resolve the Juru people's claims to all of the land and waters that they claimed, except for the claims over the discrete portions of township and rural land that will be considered later in respect of questions that I will decide separately. 26 There are 12 indigenous land use agreements that affect rights and interests in relation to the determination area (s 225(c)) that form part of the proposed consent determination. Those are between the Juru people, Kyburra Munda Yalga Aboriginal Corporation and or the applicant on the one hand and, on the other hand, various land owners and others, including the State, Burdekin Shire Council, Whitsunday Regional Council, Ergon Energy Corporation Limited, the operators of the Hancock Alpha Coal Project, the Port of Abbot Point and Adani Abbot Point Terminal. The Juru people stand to benefit in a number of ways, including, in some cases, financially, from these indigenous land use agreements. 27 The solicitors for the applicant have been diligent in negotiating the terms of the consent determination. The rights and interests in the land and waters covered by the proposed orders cover a wide area and affect many interests. A number of pastoralists and commercial fishermen have been legally represented and have also agreed to what has been proposed. Each of the parties has been legally represented in the proceedings, mediation by the Registrar and negotiations for the agreement for the consent determination. The applicant has prepared detailed written submissions in support of the proposed orders. 28 On the basis of the evidence to which I have referred, I am satisfied that a real basis existed for the parties to enter into the agreement for the consent determination and that there is a factual and legal foundation for it to be made under s 87A of the Act, including in respect of the matters mentioned in s 225. 29 In addition, the Court must be satisfied that an order in, or consistent with, the terms of the parties' signed agreement would be within its power to make if the proceedings had been contested (s 87A(4)(a) and (5)(a)). As I have noted, the parties filed the signed agreement on 27 June 2014 that the Court be asked to make a consent determination in the terms that I will pronounce today (s 87A(1)(d)). I am satisfied that an order in, or consistent with, those terms is within the power of the Court for the purposes of s 87A(4)(a) and (5)(a) because: each of the original applications, and the current amended application, is valid and each was made in accordance with the Act (ss 61, 64, 81); the amended application relates to an area in relation to which there is no approved determination of native title (ss 13(1)(a) and 61A(1)); and the proposed orders comply with the requirements of ss 94A and 225 because they set out, in relation to the land and waters specified, the group of persons holding the common or group rights comprising the native title, the nature and extent of each of the native title and other rights and interests, the relationship between those native title and other rights and interests and because they acknowledge that the Juru people's native title rights and interests to possession, occupation, use and enjoyment of the land and waters will not be to the exclusion of others. 30 Negotiations that lead to consent orders, such as the ones I am making today, resolve significant parts of litigation and have a very important place in our court system. They enable the parties to achieve results that are acceptable to all of them but that may not have been available if the Court had to decide the dispute. And, of course, such agreements also enable the Court to deal more quickly with other people's cases.

Determination that native title is to be held on trust 31 The native title rights and interests in the land and waters and the Juru people's other rights and interests in relation to the determination area under the 12 indigenous land use agreements identified in the consent determination are intended to be held on trust by Kyburra Munda Yalga Aboriginal Corporation. That corporation already holds their native title rights and interests in the Cape Upstart land and waters on trust. The corporation is a prescribed body corporate for the purposes of s 56(2) of the Act. 32 The Juru people should understand that some very significant native title rights and interests to which the claim group is entitled are not presently to be held on trust for it by Kyburra Munda Yalga Aboriginal Corporation. Those rights and interests are covered by two indigenous land use agreements. One of those agreements was entered into by the original applicant in these proceedings and Adani Abbot Point Terminal Pty Ltd, Adani Abbot Point Terminal Holdings Pty Ltd, Mundra Port Holdings Pty Ltd and Mundra Port Pty Ltd, which are developing a large coal mine and the Abbot Point facilities. The second of those agreements was entered into by some of the members of the original applicant and others with Hancock Alpha Coal Pty Ltd, which is also developing a large coal mine. 33 Presently, the potentially very valuable native title rights and interests covered by the Adani agreement are held by Juru Enterprises Limited, which is not owned or controlled by Kyburra Munda Yalga Aboriginal Corporation. Of more concern, the potentially very valuable native title rights and interests covered by the Hancock agreement are held or controlled by 14 persons, including Joe Henaway and Cecilia Upkett. On 3 March 2014, based on the evidence of Dr Pannell and Dr Mayo, I found that both of those persons were not members of the native title claim group and ordered that they be removed from these proceedings: Prior [2014] FCA 332. Both the Adani and Hancock indigenous land use agreements provide that one or more other agreements will be, or have been, made, but I have not seen any of those other agreements. Under those side agreements, substantial commercial payments will be made by the Adani and Hancock companies to persons other than the Juru people or Kyburra Munda Yalga Aboriginal Corporation. This will result in a situation where those other persons can exploit what will be from today the Juru people's legally held native title rights and interests. However, the Act and the agreement for the consent determination intended, instead, that Kyburra Munda Yalga Aboriginal Corporation, or a company owned and controlled by it in its capacity as the prescribed body corporate, would own and hold those rights and interests on trust for the Juru people. 34 The Act contemplates that such arrangements can be made before the Court has made any determination of native title rights and interests. However, the native title parties entering into such arrangements ultimately do so for and on behalf of only the true owners of any native title rights and interests that exist: Weribone v Queensland (No 2) (2013) 217 FCR 189 at 205-206 [44]-[46]. The Juru people claim group should have these rights protected, as the Act intended, by having Kyburra Munda Yalga Aboriginal Corporation take complete control of them. 35 I am satisfied by the affidavit of Ricardo Martinez, a solicitor for the applicant, that all of the members of the corporation are of Juru descent. Its rules have been amended so that they now include, in rule 3.9, Rosie Wake as an apical ancestor of the Juru people. On 29 April 2014, Mr Martinez signed, as representative of the Juru people, a notice of nomination and consent of the corporation, as a prescribed body corporate, to hold on trust the native title rights and interests to be recognised by the Court's orders today. Two members of the claim group, Angelina Akee and Raylene Oui, signed the notice as directors of the corporation to acknowledge its acceptance of its nomination. That notice was filed in the Court on 9 May 2014. 36 I am satisfied by this evidence that the corporation is properly constituted as a prescribed body corporate, and an appropriate person to hold native title on trust for the purposes of s 56 of the Act.

Conclusion 37 For these reasons, I am satisfied that it is appropriate to make the consent determination in the terms proposed. The Court congratulates the parties on achieving a resolution that gives the Juru people rights and interests that will henceforward be protected by both their own system of law and the orders of this Court made today pursuant to the judicial power of the Commonwealth under the Constitution of Australia. I certify that the preceding thirty-seven (37) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 11 July 2014 SCHEDULE QUD 554 OF 2010 BETWEEN: RAYMOND LAMPTON, RAYMOND GASTON, COLLEEN POWER, RAYLENE OUI, TANYA CHATFIELD, IRIS GLENBAR, LENORA ALDRIDGE AND VINCENT MUNDRABY Applicant AND: STATE OF QUEENSLAND First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent WHITSUNDAY REGIONAL COUNCIL Third Respondent BURDEKIN SHIRE COUNCIL Fourth Respondent ERGON ENERGY CORPORATION Fifth Respondent PAUL CURTEIS, MELLASANNE GRAY, NOEL GRAY, KAREN QUADRELL, MATT QUADRELL, NATHAN RYNN, TRAVIS RYNN, GFB DEVELOPMENTS PTY LTD Sixth Respondent ENERGY MINERALS PTY LTD Seventh Respondent AURIZON NETWORK PTY LTD, AURIZON PROPERTY PTY LTD Eighth Respondent HANCOCK COAL INFRASTRUCTURE PTY LTD Ninth Respondent TELSTRA CORPORATION LIMITED Tenth Respondent VARIOUS PASTORALISTS Eleventh Respondent PAUL AND CHRISTINE BENVENUTI Twelfth Respondent

(Cth), the Telecommunications Act 1975(Cth)

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

(Cth), the Telecommunications Act 1991(Cth)

Minerals Resources Act 1989(Qld)

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

(Queensland) Act 1993(Qld)

REASONS FOR JUDGMENT 1 The Court is sitting today in Juru country to recognise and acknowledge that the Juru people are the traditional owners of lands and waters extending from the coast near Home Hill, along the Burdekin River in the north-west, south to the head of the Don River, east towards Bowen, and approximately 20 kilometres seaward of the coastline in the Coral Sea. These lands and waters include those around Guthalungra. That is the language name for the area that Captain James Cook called Cape Upstart when he sailed HMS Endeavour along the East Coast of our nation in 1770. On 26 July 2011, I made a consent determination that recognised the Juru People's native title rights and interests over Cape Upstart and its environs: Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819. I will repeat below some of those reasons that are also relevant for today's reasons. 2 All of the parties to these proceedings signed the agreement for today's consent determination that was filed on 27 June 2014. That is the basis for the orders that I will make today under the s 87A of the Native Title Act 1993 (Cth) that will recognise the Juru people's native title rights and interests over a significant, but not the entire, area of the lands and waters claimed in the present application.

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