McLennan on behalf of the Jangga People v State of Queensland

Federal Court of Australia|2012-10-09|Before: Rares J, Lorna P

The application 7 The application claimed that the Jangga people held the rights and interests comprised in their native title both before, and continuously after, European settlement and the exercise of British, and then Australian, sovereignty over those lands and waters. 8 The applicant comprises representatives of the descendants of the Jangga people who are recognised by their traditional laws and customs as persons entitled to enjoy and exercise native title over the land and waters in an area of about 20,350 square kilometres that spans three local government areas of the Charters Towers, Isaac and Whitsunday Regional Councils. 9 The area is located west of Mackay. In broad terms, its eastern most point is Glenden, where the Court is sitting today. The boundary runs north west along the Leichhardt Range and crosses the Suttor River near the Burdekin Dam before turning south south west and running down towards the Great Dividing Range. Then the boundary turns east traversing the Belyando River and Mistake Creek before running nor-nor east along the Denham Range and finishing at Glenden. A rough map of the area is below, but this does not depict the excision of the land that is not claimed, such as the towns of Mt Coolon and Glenden as well as many convertible leases. Those excisions give the actual area, which will be the subject of the Court's orders, a speckled appearance. 10 These proceedings began over 14 years ago on 2 April 1998 when a claim was lodged with the Native Title Registrar. Following amendments to the Act, that claim was made an application for a determination of native title in this Court as from 30 September 1998. The application was accepted for registration under s 66 of the Act by the Native Title Registrar on 7 July 2000. The notification period under s 66(3) of the Act ended on 12 September 2001 (see: s 87(1)). The application was amended in July 2004 and the registrar accepted the amended application for registration on 19 October 2004. 11 On 19 September 2012 a further amended application was filed. The recent amendment reflected the results of anthropological research and the agreements reached between the parties as to the scope of the Jangga people's claim including agreements to exclude certain previously claimed lands and waters. 12 The current respondents who elected to be joined to these proceedings are the State, Charters Towers, Isaac and Whitsunday Regional Councils, Ergon Energy Corporation Limited, QCoal Pty Ltd, Xstrata Coal Queensland Pty Ltd, Colinta Holdings Pty Ltd, Talbot Group Exploration Pty Ltd and a number of pastoral interests. 13 Six members of the applicant, together with another member of the claim group, provided affidavit evidence in support of the claim. In April 2011, Daniel Leo, an expert anthropologist, completed a very detailed and lengthy anthropological connection report that provided expert evidence in support of the Jangga people's claim. In early September 2012, Mr Leo prepared an executive summary of that report for the purpose of this consent determination. He used the affidavits and significant additional material garnered in his site visits, interviews, literature and historical reviews in preparing his report. I am satisfied that the connection report and affidavits have been carefully reviewed by the State, its lawyers and anthropological experts. I am also satisfied that the State has also conducted a satisfactory analysis of lands and waters affected by the consent determination. 14 Mr Leo's research led him to opine that the Jangga people: were the traditional owners of the lands and waters that they have claimed and occupied them at the time of British sovereignty; continue to observe very much of the body of traditional laws and customs that the pre-sovereign Aboriginal society observed and by which that society was united; have maintained a connection to their country through the continued acknowledgment and observance of traditional laws and customs of the society that existed at sovereignty; as a result, currently possess the traditional rights and interests identified in the consent determination.

The subject matter of the determination 15 Ordinarily, the courts are reluctant to make binding declarations of rights merely because the parties seek this remedy by consent. The reason for this is that it is difficult for the Court to be satisfied that a declaration is appropriately and completely accurately expressed if there has been no contest in the litigation that exposes all the issues and ramifications that would impact on the Court's appreciation of the precise point to be decided. 16 However, the Act itself creates in s 87 the power to make consent determinations. Therefore, the discretionary limitations ordinarily placed on the Court's exercise of its power to make a declaration are not necessarily apposite to the issue raised by s 87(1A), namely, whether "it appears to the Court to be appropriate" to make a consent determination. The power must be exercised having regard to the beneficial purpose of the Act and its moral foundation declared in the words of its preamble: Northern Territory of Australia v Alyawarr (2005) 145 FCR 442 at 461 [63] per Wilcox, French and Weinberg JJ. 17 In making a determination that native title exists, even by consent and without a hearing, the Court must set out details of the matters mentioned in s 225 (s 94A). Accordingly, if the Court is asked to make a consent determination, it must be satisfied that there is sufficient evidence before it that would make it appropriate to do so (s 87(1A)). However, it is not necessary to tender evidence as if the consent proceedings were still contested. That is not the purpose for which such evidence is required. Rather, as the Chief Justice of Australia explained, it may be necessary to reassure the Court that a proper basis exists for the determination because "… the agreement is rooted in reality" (The Hon R.S. French AC, Native Title - A Constitutional Shift?, published in: H.P. Lee and P. Gerangelos (ed), Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton, The Federation Press, 2009, pp 126-154 at 152). 18 What evidence will be sufficient will vary from case to case, but it must show that the orders have a substantive and real foundation. Anthropological evidence, such as Mr Leo's, is often tendered so as to assist the Court in arriving at this degree of satisfaction. The evidence is relevant for the Court to satisfy itself that the parties had a real basis to arrive at their consent and that, accordingly, it is appropriate for the Court to exercise its judicial power by making binding orders. Indeed, in the first place, because of its cogency, the same evidence is likely to have induced the respondents to consent to the making of the determination of native title. 19 I have considered the evidence of Mr Leo on this basis, together with the other evidence. His connection report included genealogies that he prepared, of all of the persons who were identified as ancestors of the claim group in the present version of the application. Mr Leo drew on an earlier anthropological connection report by Dr Sandra Pannell which was used in support of a consent determination that I made last year for the Juru people (Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819. 20 Dr Pannell concluded from her research, and Mr Leo confirmed from his further work, that the Juru and Jangga peoples were each a tribe, clan, community, subset or societal grouping within the larger Birri Gubba society or cultural block. Mr Leo opined that this wider society had a clearly recognisable regional system of common languages, traditions, laws and customs within which the smaller tribal entities with their own dialects, as well as individual traditions, laws and customs existed. Both anthropologists noted that the Birri Gubba society had one division between peoples who were gudjuda - saltwater or coastal, such as the Juru people, and mungurra - freshwater or inland, such as the Jangga people. 21 Mr Leo opined that like each subset in the Birri Gubba Society, the Jangga people: had an exclusive affiliation to a defined tract of country; were comprised of more than one surnamed family, descent group or lineage, descended from acknowledged ancestors, being (for the Jangga people), the respective lineages of descendants of: (a) Charlie Tiers; (b) Dick Hegarty (also known as Dinduk); (c) Pompey Earl, Albert Twist and Charlie Pinkipie and his wife or partner Judy Pinkipie; (d) the brothers Mick Havilah (also known as Cotherstone) and Johnny Havilah; (e) Dick Cook and his wife or partner Lily Cook; (f) Billy (also known as King Billy) and his wife or partner Clara (also known as Queen Clara). 22 Mr Leo opined that the last of those lineages had no presently known descendants. He also observed that because of intermarriages between subsets in the Birri Gubba Society, individuals, families and even lineages can be affiliated to more than one of those subsets. After the final agreement was filed on 2 October 2012 I asked the Registrar to clarify with the parties the correct spelling of the name "Dinduk" which had been set out in the proposed orders spelt as "Dinduck", but had been included with both spellings in Mr Leo's report. The parties agreed that the name should have been spelt "Dinduk" and I have made that change to Schedule 3 of the orders. 23 The story of Glen Eva station gives one remarkable instance of connection for the Jangga people to their country. George Patullo was part of an early European settler family. He held a 20 year pastoral lease of Glen Eva from 1911. This station is about 20 kilometres south west of Mt Coolon. He previously held yearly occupation licences from at least 1906. When he died in 1928, Lily Talbot, an Aboriginal, and reputedly Jangga woman, who had been George's partner, inherited the lease. She was subsequently granted a new 30 year lease in April 1929. On her death, Lorna Anderson, the grandmother of two members of the applicant, Colin and Marie McLennan, inherited a half share, the other half going to Mary O'Singh who in 1949 transferred her interest to Lorna. When Lorna died intestate in 1961, Dorothy McLennan and Jim Clark inherited the station and they were granted a new 30 year lease. However, after 42 years of indigenous ownership, the lease was sold in early 1970. 24 Mr Leo opined, based on both the oral histories and archival data, that Glen Eva played a central role in maintaining the connection of Jangga people to their country. He wrote that at least four generations of Jangga people, as well as members of other Birri Gubba subsets, had lived and worked on Glen Eva. There, Mr Leo observed, they were taught about their country, culture and history by their own, or other Birri Gubba, elders. 25 Mr Leo's executive summary and connection report deal with his extensive work to found his opinion. He opined based on his and other's research, that the Jangga people possess the rights and interests in the lands and waters that they claim under their traditional laws and customs that they largely continue to observe. He noted that the laws and customs relating to kinship and class systems were currently latent, but could be revived in the future. With those exceptions, he concluded that the contemporary Jangga people continue to observe the traditional laws and customs of their pre-sovereignty forebears. The affidavit evidence of members of the Jangga people also supports that opinion. 26 For the purpose of considering whether to consent to the orders to be made today, the State considered the material that had been provided to Mr Leo, his anthropological report together with other material that the applicant and it had garnered over the course of the proceedings. It had a senior anthropologist and counsel experienced in native title matters review those materials to determine whether there was a credible basis for the applicant's claims and whether the requirements of s 223 of the Act had been met. The State's senior anthropologist, counsel and officers of Crown Law and its Aboriginal and Torres Strait Islander Land Services prepared a response to the applicant's material. From late June 2011, the applicant and the State entered into substantive negotiations to work towards a consent determination. The parties also worked together in pursuing that goal in mediation with the Tribunal and later in the Court under the guidance of Deputy Registrar Fewings. During this process, the applicants provided further statements to address issues then of concern to the State. 27 Kevin Murphy, the Director of Claim Resolution for Aborignal and Torres Strait Islander Land Services, Department of Natural Resources and Mines gave evidence of the process undertaken by the State to satisfy itself the consent determination reflects rights and interests that are supported by the connection and additional material provided in the way I have described above.

Jurisdictional findings 28 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. 29 The approach of the solicitors for the applicant in negotiating the terms of the proposed consent determination and the forty four indigenous land use agreements has been equally thorough and considered. It is safe to infer that the interests of individual parties who also negotiated those indigenous land use agreements have been sufficiently protected by them and, where they had them, their legal representatives. 30 On the basis of Mr Leo's and the State's evidence, I am satisfied that a real basis existed that justified the parties entering into the agreement for the consent determination and that there is a sufficient foundation for it to be made, including in respect of the matters mentioned in s 225. 31 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 87(1)(c)). As I have noted, the parties have signed their agreement that the Court be asked to make a consent determination in the terms that I will shortly pronounce (s 87(1)(b) and (2)). I am satisfied that an order in, or consistent with, those terms is within the power of the Court for the purposes of s 87(1)(c) and (2) because: (a) each of the original application, and the current amended application is valid and each was made in accordance with the Act (ss 61, 64, 81); (b) the amended application relates to an area in relation to which there is no approved determination of native title (ss 13(1)(a), 61A(1)); (c) 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 specify the extent to which the Juru people's native title rights and interests to possession, occupation, use and enjoyment of particular lands and waters will or will not be to the exclusion of others. 32 I am satisfied that it is appropriate that the Court make the orders sought as the consent determination without holding a hearing (s 87(2)) for the following reasons. Each of the present parties has been legally represented in the proceedings, at the mediations that have taken place in the Tribunal and the Court as well as in the negotiation of the signed agreement to which the Court is being asked to give effect. The applicant prepared detailed and well researched written submissions in support of the proposed orders. Both the applicant and the State also relied on evidence of their careful preparation and examination of the evidence on which those proposed orders are being sought. In addition, the applicant has negotiated indigenous land use agreements with each of the persons that are recorded as part of the proposed orders. And, the orders reflect the existence of the variety of rights and interests of the State, the parties and other persons under Queensland law to enter the land and waters. 33 There is a very important public interest in the parties to disputes in the Courts being able to negotiate a resolution of their controversy so as to arrive at a solution that they find acceptable. Settlement of disputes assists the whole community in achieving more ready access to the Courts for those cases that require a full hearing on the merits and the delivery of reasons for judgment. Thus, other cases that parties cannot resolve between themselves can be heard more quickly and efficiently because the Court is not required to devote the public resource of its hearing and judicial time to resolving cases that are settled: see too my reasons in Clark v ING Life Limited [2007] FCA 1960 at [25]. This public interest is also reflected expressly in s 87 of the Act and its provisions for mediation.

Determination that the native title is to be held on trust 34 Three members of the applicant, James Gaston, Colin and Marie McLennan have given notice as representatives of the Jangga people that they intend to have the native title held on trust by, Bulganunna Aboriginal Corporation, a prescribed body corporate for the purposes of s 56(2) of the Act. I am satisfied that Marie McLennan was entitled to be nominated as a director of the corporation in her capacity as a descendant of Charlie Tiers and, secondly, Mr Gaston was entitled to be nominated as a director in his capacity as a descendant of Pompey Earl. The corporation consented to its proposed appointment on the same day. I am satisfied by the evidence of David Saylor, a solicitor for the applicant, that this corporation is a prescribed body corporate, properly constituted and an appropriate person to hold the native title on trust for the purposes of s 56 of the Act.

The procedural history 35 The Parliament's 1993 preamble to the Act recited that: "It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests." 36 Unfortunately, these proceedings have taken a very long time to reach the present position. Indeed, in 2009 and early 2010, it appeared that the application would be dismissed. Since mid 2010, the parties in these proceedings accepted that it was their duty, as well as in their interests, to focus on the real issues. It is apparent that a great deal of fruitful work has been done since then and all of the parties may take pride in having been able to achieve a very complex but clearly mutually satisfactory result. This has resulted in the position that the Court can today make a consent determination.

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 Jangga 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 paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

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

(Cth), the Telecommunications Act 1975(Cth)

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

(Cth), the Telecommunications Act 1991(Cth)

Native Title Act 1993(Cth)ss 13(1)(a), 61, 61A(1), 64, 66, 66(3), 81, 87, 87(1), 87(1)(c), 87(1A), 94A, 223, 225

McLennan on behalf of the Jangga People v State of Queensland [2012] FCA 1082 CORRIGENDUM

In paragraph 31(c) of the Reasons for Judgment, in the sixth line, the word "Juru" should read "Jangga". I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Rares.

The nature of a consent determination 4 Native title was recognised and protected by our nation's common law in the landmark decision of Mabo v State of Queensland [No 2] (1992) 175 CLR 1 and by the Parliament of the Commonwealth when it passed the Act the following year. Those important legal steps enabled indigenous Australians and their descendants to satisfy the very human desire to identify with, enjoy and feel a part of their cultural heritage on land and waters with which they have, and feel, a spiritual and emotional connection. When the Court makes an order for a determination of native title, it exercises the judicial power of the Commonwealth, on behalf of the whole of the Australian community, to validate the indigenous claimants' rights and interests as having the force of law in both social systems: cf Long v Northern Territory of Australia [2011] FCA 571 at [6] per Mansfield J. 5 A determination by the Court that native title exists serves many important purposes, as the preamble to the Act acknowledges. These include the recognition of the entitlement of indigenous Australians to enjoy rights and interests in the land and waters, in accordance with their peoples' traditional laws and customs. Those rights and interests were not previously recognised, following European settlement and the displacement and frequent dispossession of indigenous Australians. However, from today, the rights and interests of the Jangga people will be protected by the force of law so that the current and future descendants of the original indigenous inhabitants before 1861 will enjoy rights and interests that their ancestors had. 6 The Court has not had a trial to establish the applicant's claim on its merits. Even so, the Court has an important power to make a determination that native title over land and waters exists under s 87 of the Act once all of the parties have signed a written agreement and provided certain other conditions are met. In these proceedings, the State of Queensland has consented to the making of the determination of native title. Before the Court can make the orders recognising native title, it must be satisfied that the consent determination has been reached after proper consideration by the parties, particularly the State, of all of the matters that the Act requires be established. This consensual process depends upon the executive government of each State and Territory in whose jurisdiction the claim is made taking an active role in the litigation. The government must scrutinise carefully any claim for native title in order to seek to protect the interests of the whole community that it represents: Munn v State of Queensland (2001) 115 FCR 109 at 115 [29] per Emmett J. I will now deal with the legal and factual issues that I must decide in order to make the consent determination.

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