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[2015] FCA 609
Federal Court of Australia
2015-06-22
Mr P, Rares J
Original judgment source is linked above.
Background 7 In preparation for the hearing set to commence on 29 January 2015, the applicant provided additional evidence to the State to support the Juru people's case. That evidence comprised outlines of evidence that eight lay witnesses would give, an historical report by Dr Rosalind Kidd and a supplementary anthropology report by Dr Sandra Pannell. The State also provided the applicant with the results of some additional tenure research that it had undertaken. 8 Dr Kidd concluded from her review of historical records that, from and after first contact with Europeans in 1859, there was significant evidence of continuous Aboriginal presence in the Kennedy district. That district stretched over an area of about 51,000 square miles, or 132,000 square kilometres, from the coast and contains the towns of Bowen, Euri Creek/Merinda and Inkerman/Home Hill. She found that the Europeans quickly realised the pastoral potential of that district. 9 Dr Kidd located an article in the Sydney Morning Herald of 24 November 1859. That article reported the discovery of a new harbour in Edgecumbe Bay by Captain Sinclair, the master of the ship Santa Barbara. He named the harbour Port Denison. In 1861, Port Denison was renamed Bowen. The article reported Captain Sinclair had said that when the ship anchored near Gloucester Island in mid-October 1859: The natives came off to us in canoes, and brought us two casks of water, for which we gave them two tomahawks and sundry articles of wearing apparel. They appeared very anxious for us to go ashore, which we declined. 10 Dr Kidd said that the article reported that several Aboriginal men again came aboard the ship the following morning, and again urged the crew to land. They offered to bring more fresh water, and returned with two filled buckets provided by the crew. When men from a second canoe also boarded, the crew discovered they had weapons hidden under the shirts given to them the previous day. They left hurriedly when challenged: The natives here appeared to be very strong and daring, and more ingenious than any part of the coast we have visited. Their canoes are formed with three pieces of bark sewn together with grass-tree, and forming very pretty models. They are exceedingly light and buoyant, and are capable of carrying five men. 11 Over many years the Juru people have since shown similar qualities in seeking orders under the Native Title Act recognising their rights and interests in the three consent determinations that now cover a considerable area of the land and waters that were theirs in and before 1859. 12 Dr Pannell's supplementary report specifically considered the anthropological issues relating to the Bowen, Merinda, Home Hill and rural areas. She opined that contemporary Juru people know about their laws and customs, because each earlier generation had passed these on orally to the next generation or because each generation had observed and been instructed about them through interacting with other Juru and Birri Gubba people. While Dr Pannell could not say unequivocally that the Juru people had acknowledged and observed those laws and customs continuously since European settlement, nonetheless, in her opinion, it was likely that they had done so. That was because, she said, there was considerable evidence that this had occurred for over a century. She observed that some adaptations had occurred to those laws and customs as a result of the Juru people's interactions with the European settlers. However, Dr Pannell considered that the Juru people appeared to have continued substantially to acknowledge and observe their traditional laws and customs. 13 Dr Pannell identified ways in which Juru people expressed their physical, social and spiritual connection with the areas over which I will make the new consent determination today. She also opined that, under their traditional laws and customs, the Juru people held their native title rights and interests in their traditional lands and waters to the exclusion of all others. 14 Of course, the consent determinations of 2011, 2014 and today must take into account the impact of the Native Title Act and common law on the extent to which the Court can recognise those native title rights and interests in light of all that has happened since European settlement. Therefore, the consent determinations provide that in some areas the Juru people can exercise their rights and interests to the exclusion of everyone else while in other areas they can do so non-exclusively. 15 Geoffrey Renouf is the acting director of claim resolution within the Aboriginal and Torres Strait Islander Land Services of the State's Department of Natural Resources and Mines. He said in his affidavit of 5 June 2015 that he had overall responsibility for the management of these proceedings. 16 Mr Renouf said that each of counsel for the State, solicitors from Crown Law, an expert anthropologist and an expert historian engaged by the State reviewed the new material provided by the applicant for the separate trial. Once he had considered those reviews, Mr Renouf then instructed Crown Law to negotiate the terms of a draft consent determination. Those settlement negotiations resulted in the parties' application, that I granted on 17 December 2014, to vacate the 29 January 2015 hearing with a view to me making a consent determination today. 17 Mr Renouf explained that the parties wanted the operation of orders 2 and 3 in the consent determination to be suspended for 12 months to allow time for further negotiations to resolve two outstanding matters. He said that was because the parties had to deal with, first, some unauthorised structures that have been erected on the areas referred to in order 2 and, secondly, the safe operation of two gun clubs that affects the areas referred to in order 3. I am satisfied that, in those circumstances, it is appropriate to suspend the operation of orders 2 and 3, as the parties seek.
Jurisdictional findings 18 The parties affected by the orders sought in the proposed consent determination are the applicant, the State, the Commonwealth, Whitsunday Regional Council, Burdekin Shire Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Aurizon Network Pty Ltd, Aurizon Property Pty Ltd, Hancock Coal Infrastructure Pty Ltd and several persons operating commercial fishing businesses. Those parties signed an agreement under s 87(1) of the Native Title Act for the making of the proposed consent determination. That agreement was filed on 10 June 2015. 19 I have already made findings in my reasons for judgment in the two previous consent determinations as to why anthropological evidence in support of the current existence of native title rights and interests was, and having regard to the matters to which I have referred above, remains sufficient to enable the Court to exercise its special power to make the proposed consent a determination under s 87(2) of the Act without a fully contested trial of this question. 20 All of the land and waters over which the parties have agreed that I should make today's consent determination are wholly within the wider geographical area that was the subject of the 2014 consent determination. In addition, I found that Kyburra Munda Yalga Aboriginal Corporation was a prescribed body corporate and was an appropriate person to hold native title on trust for the purposes of s 56 of the Act, as the present proposed consent determination also contemplates: Lampton [2014] FCA 736. That is still the position. 21 The Court may make an order in the terms of the proposed consent determination without holding a hearing, if it considers that an order in those terms is within its power and it is appropriate to do so, as s 87(2) provides. 22 I am satisfied that an order in those terms is within the power of the Court, for the purposes of s 87(2), because: first, 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); secondly, 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 thirdly, 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 where the Juru people's native title rights and interests to possession, occupation, use and enjoyment of the land and waters will, or will not, be to the exclusion of others. 23 Accordingly, for the reasons that I gave for making the 2014 determination and having regard to the further material to which I have referred today, I am satisfied that it is appropriate to act on the basis of those earlier findings and the further material in respect of the identity of the apical ancestors of the Juru people, the continuing connection of the Juru people to the land and waters within the claim area and the appropriateness of Kyburra Munda Yalga Aboriginal Corporation to hold native title interests on trust for the Juru people.
Conclusion 24 The Court congratulates the parties in achieving this important milestone and in finalizing this whole claim. It will give the Juru people certainty about the entire area of land and waters over which they can exercise their traditional native title rights and interests, substantially with the protection both of their own laws and customs, as well as of the orders of this Court that I now make. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Associate: Dated: 22 June 2015 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 AURIZON NETWORK PTY LTD, AURIZON PROPERTY PTY LTD Seventh Respondent HANCOCK COAL INFRASTRUCTURE PTY LTD Eighth Respondent TELSTRA CORPORATION LIMITED Ninth Respondent
Lampton on behalf of the Juru People
State of Queensland
REASONS FOR JUDGMENT 1 This is the third occasion on which the Court will make a consent determination of some of the Juru people's native title rights over land and waters with which they have connection. Today's determination concerns about 200 individual, scattered and relatively small lots in and around the townships of Bowen, Merinda and Home Hill and certain other parcels of rural land and waters within the large area over which I made the second of those consent determinations in Bowen, on 11 July 2014: Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736. 2 Earlier, on 26 July 2011, I made the first of the consent determinations of native title in respect of the land and waters at Cape Upstart, which formed part of the traditional land and waters of the Juru people: Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819. 3 At the time of the 2014 determination, the parties had not been able to agree as to whether the Juru people's native title rights and interests continued to exist in any of the land and waters included in today's consent determination and, if they did, what those rights and interests were. I made orders on 27 June 2014 and 17 July 2014 so that those issues could be resolved in a separate trial, due to commence on 29 January 2015. One of those issues was whether the Juru people had maintained a sufficient connection with parcels of land and waters held by the State of Queensland to give them the benefit of a presumption of native title provided in s 47B(1)(b) of the Native Title Act 1993 (Cth). 4 The 2014 determination also did not include land and waters over which the Commonwealth had exercised its powers for the defence of Australia during World War II. On 13 May 2015, the High Court decided that the effect of the Commonwealth's exercise of those powers did not extinguish native title: Queensland v Congoo [2015] HCA 17. This decision has now allowed the parties to resolve all outstanding issues in the Juru people's application for a determination of native title. 5 The law provides that some events that have occurred since European settlement of Australia have extinguished all or some native title rights and interests in our many indigenous peoples' traditional land and waters. However, the law also recognizes that traditional owners, such as the Juru people, are entitled to exercise all native title rights and interests that now exist over their land and waters. The parties' agreement for a further and final consent determination to be made today has finally identified all of the land and waters over which the Juru people have native title rights and interests. 6 The scattered parcels of land and waters that are covered in the present consent determination can now be combined with the land and waters in the two earlier ones. The Juru people once again will be able to exercise their native title rights and interests over all of them with the full authority of the law of our nation through the orders of this Court.