Miller on behalf of the Birriah People v State of Queensland

Federal Court of Australia|2016-03-23|Before: Logan J

THE APPLICATION OF SECTION 87A TO THE BIRRIAH PEOPLE'S CLAIM 40 The requirements of s 87A of the Act have been satisfied in the present case. In particular: (a) There is a proceeding in relation to an application for a determination of native title (s 87A(1)(a)); (b) Agreement has been reached on a proposed determination of native title in relation to the area included in the area covered by the application (s 87A(1)(b)); (c) All relevant parties to the proceeding are parties to the agreement (s 87A(1)(c)); (d) An order in terms of or consistent with the agreement would be within the Court's power and it would be appropriate to make the order (s 87A(4)) because: (i) the application is valid and was made in accordance with s 61 of the Act; and (ii) the application is 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 agreement complies with s 94A and s 225 of the Act and (e) It is appropriate that the Court make the orders sought because: (i) all parties are legally represented; (ii) it is consistent with objects in the Act that issues and disputes concerning native title are resolved by mediation; (iii) the State of Queensland has taken a real interest 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; (iv) the connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determinations; (v) the requirements of ss 56, 94A and 225 of the Act are satisfied; and (vi) the proposed determinations are unambiguous and certain as to the rights declared.

SATISFYING SECTION 57 OF THE ACT 41 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 or otherwise and if not held on trust, the non-trust functions of the prescribed body corporate. 42 As to the proposed determinations, Mr Michael Owens has informed the Court on 26 February 2016 that the native title is to be held on trust and the Birriah Aboriginal Corporation (ICN 8261) is to be the prescribed body corporate under s 56 of the Act. The Birriah Aboriginal Corporation was registered on 30 July 2015 under the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth). It will perform the functions mentioned in s 57(1) of the Act. 43 The Court notes that on 26 February 2016, Michael Owens filed an affidavit that annexes a Notice of Nomination and Consent of Birriah Aboriginal Corporation as the Prescribed Body Corporate, which satisfies the requirements of s 57(1) of the Act. 44 The Birriah Aboriginal Corporation satisfies the requirements of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) because: (a) it is an Aboriginal and Torres Strait Islander Corporation: reg 4(1); (b) its purpose, as set out in its Rules of the Corporation, satisfy reg 4(2)(b); (c) the eligibility requirements of the Rules of the Corporation operate to ensure that all members of the corporation at the time of the determination are included or proposed to be included in the determinations as persons who have native title rights and interests in relation to the determination area: reg 4(2)(b). 45 Finally, and it warrants repetition, it needs to be understood that agreements of the kind that have brought about today's hearing and determinations 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 directions hearings, some regional, others in Brisbane, 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, including that so vitally provided by the Commonwealth to pastoralists, involves a considerable investment of public money. 46 For the reasons given, the Determination is now made. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

SCHEDULE OF PARTIES QUD 6244 of 1998 Applicants Fourth Applicant: GRACELYN SMALLWOOD Fifth Applicant: ALGON WALSH (JNR) Respondents Fourth Respondent: ISAAC REGIONAL COUNCIL Fifth Respondent: MACKAY REGIONAL COUNCIL Sixth Respondent: WHITSUNDAY REGIONAL COUNCIL Seventh Respondent: ERGON ENERGY CORPORATION LIMITED Eighth Respondent: TELSTRA CORPORATION LIMITED (ACN 33 051 775 556) Ninth Respondent: GLENCORE COAL QUEENSLAND PTY LIMITED (FORMERLY XSTRATA COAL QUEENSLAND PTY LTD) Tenth Respondent: NEWLANDS COAL PTY LTD Eleventh Respondent: Q COAL PTY LTD Twelfth to Thirty-Fourth various Pastoral Respondents: HELEN FRANCES ALFORD, WILLIAM HENRY ALFORD (JNR), JUILEANN VERONICA ANGUS, RODNEY STEWART ANGUS, MARIAN JESSIE CERQUI, VINCE CERQUI, COLINTA HOLDINGS PTY LTD, DANIEL EDWARD COMERFORD, ERROL HENRY COMERFORD, NOEL JAMES GRIFFIN COMERFORD, PETER MICHAEL COSTELLO, YVONNE LAMONT COX, LENNETTE ANN DOBE, WILLIAM THOMAS GORDON DOBE, GRASS HUT PTY LTD, KELVA DYAN HUGHES, RICHARD BRIAN HUGHES, LESLIE JOHN PAYNE, ANDREW REA, DENISE ROSE SCHEIDER, ALEXANDER BARNARD TURNER AND NEIL JOHN WHITSON (AS PERSONAL REPRESENTATIVES OF DINA VERA TURNER DECEASED0, DIANE ROSEMARY WATTS, CLIVE ERNEST WATTS Thirty-Fifth Respondent: AIRSERVICES AUSTRALIA Thirty-Sixth Respondent: CASTLE HILL EXOTICS PTY LTD Thirty-Seventh Respondent: RAPISARDA INVESTMENTS PTY LTD Thirty-Eighth Respondent: BEVERLEY ANGUS SPURDLE, GLEN DAVID SPURDLE, GRAHAM ROBERT SPURDLE, GAVIN CRAIG SPURDLE AND JOHN HERBERT SPURDLE

(Cth), the Telecommunications Act 1975(Cth)

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

(Cth), the Telecommunications Act 1991(Cth)

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

Petroleum and Gas Act 2004(Qld)

Sustainable Planning Act 2009(Qld)

(Queensland) Act 1993(Qld)

Native Title Amendment Act 2009(Cth)

Corporations (Aboriginal and Torres Strait Islanders) Act 2006(Cth)

Native Title Act 1993(Cth)ss 23B, 23B(2), 23B(3), 23B(7), 23C(2), 24IB, 24ID(1)(b), 31, 47, 47A, 47B, 56(2)(b), 56(3), 57(1), 61A, 212(2), 232B, 251D, 253

LOGAN J: 1 As I have previously observed, when having the privilege of constituting the Court for the making of earlier determinations, one of our National Parliament's objectives in respect of the Native Title Act 1993 (Cth) (the Act) is the resolution of claims for the recognition of native title by agreement. That objective is borne out in s 87 and s 87A of the Act, especially by amendments made by the Native Title Amendment Act 2009 (Cth). 2 Today is another occasion when the Court gives practical voice to that objective by determining an application for part of an area by consent, save one lot within the claim area. That this objective is, in Queensland, now frequently achieved does not diminish the unique importance of a determination in favour of the Birriah Native Title claimants in respect of the land and waters within the area in north east Queensland identified in Schedule 1 of the Court's orders. 3 The Birriah claims have a long history in this Court. The first application for a determination of native title over the claim area was lodged with the National Native Title Tribunal on 3 April 1998 by the Central Queensland Land Council Aboriginal Corporation (CQLCAC) and was lodged under the designation of "birria". Following amendments to the Act in 1998, such applications became Federal Court proceedings. A notice of motion to amend the application was filed in the Federal Court on 6 October 1999 following a decision by the claimant group to change the name of the claim from "birriah" to birri". The Court granted leave to amend on 18 October 1999. A further amended application was filed in the Court on 24 November 1999 and leave was granted to amend the application on 30 November 1999. This further amended application was accepted for registration by the Native Titles Registrar on 7 February 2000. 4 Between August 2001 and January 2016, six (6) further amended applications were filed with the Court. 5 On 28 September 2014, the Birriah People authorised amendments to their claim group description such that the Birriah people were described as comprising the descendants of Jinnie Tiers, Kuburu, the father of Billy Lightning Banbari, John Smallwood, Rosie Schilling, Peggy Barker, Sambo Callaghan, Tommy Morgan, the mother of Lizzie Limburner and Nellie Skeen or William (Billy) Skeen Snr. 6 The most recent application to amend, filed by the applicants on behalf of the Birriah People, was filed on 8 October 2015. On 21 January 2016, leave to amend was consequentially granted, pursuant to s 66B of the Act. That latest amendment resulted in the inclusion of the descendants of another apical ancestor in the descendants of the Birriah People after additional research had been undertaken regarding the claim group. The descendants of the Biriah People now consist of Jinnie Tiers, Kuburu, the father of Billy Lightning Banbari, John Smallwood, Rosie Schilling, Peggy Barker, Sambo Callaghan, Tommy Morgan, the mother of Lizzie Limburner, Nellie Skeen or William (Billy) Skeen Snr, Caroline Roger, Maggie or her husband Harry Shepherd (Snr). 7 This amended application was filed in Court on 22 January 2016. 8 There are currently thirty-six respondent parties, including the State of Queensland, the Burdekin Shire, Charters Towers Regional, Isaac Regional, Mackay Regional and Whitsundays Regional Councils representing the local governments within the claim area as well as energy, mining and infrastructure companies and various pastoralists. 9 Viewed against that history and like many such claims, it can be seen that this claim has been long in its gestation. In earlier judgements in cases like the present, for example in 2012 in Hoolihan on behalf of the Gugu Badhun People #2 v State of Queensland [2012] FCA 800; Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 and Fisher on behalf of the Ewamian People #2 v State of Queensland [2013] FCA 1249, I observed that native title claims which linger unresolved on a court list are an affront to our system of justice. The statements which I then made are just as applicable to this case. 10 That said, the consensual resolution of the current Determination Application in less than ten years is testament to much dedicated work by experienced legal advisers and some innovative negotiation techniques, the responsible actions of the parties guided by their advisers and case management by the Court's registrars. The result is that a s 87A determination for part of the claim area has been achieved in what is a relatively short time in this jurisdiction of the Court. I commend the parties and the legal practitioners involved. 11 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji), and as I have in subsequent determinations, I adopted observations made in King v Northern Territory of Australia [2011] FCA 582 (King) by Mansfield J. His Honour made a number of observations about the preamble to the Act. I remain in complete agreement not only with the substance of his Honour's observations in King but also with the manner in which he expressed them. They are also exactly apposite in the present proceedings. As I did in Muluridji and have done subsequently, I propose therefore to adopt them as my own in these reasons for judgment without further attribution. 12 The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications have always been the traditional owners of the land. By the Court's orders, the Australian community collectively recognises that status. It is important to emphasise that the Court's orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement. 13 The applicants rely on fourteen affidavits from members of the claim group that provide direct evidence of their ongoing connection to the land and waters in the claim area. The affidavits are from a broad cross section of the claim group and depose to the observance of traditional laws and customs and the exercise of the native title rights and interests that I am able to recognise today. The composition of the claim group is supported by an affidavit from anthropologist, Dr David Hugo which provides anthropological evidence of the Birriah People and of the apical ancestors for the Birriah Claim Group as well as genealogical charts and geographical maps of the claim area. 14 The application also relies on supplementary reports by Averil Ginn and Fiona Powell for the provision of a complete, consolidated list of apical ancestors for the Birriah Claim Group.

SECTION 87A OF THE ACT 15 Section 87A of the Act provides that the Court may make a determination of native title by consent over part of an area covered by a native title application and without holding a hearing where: (a) There is a proceeding in relation to an application for a determination of native title (s 87A(1)(a)); (b) the period specified in the notice given under s 66 of the Act has ended and agreement is reached on a proposed determination of native title in relation to an area included in the area covered by the application (s 87A(1)(b)); (c) the applicant, each registered native title claimant party to the proceeding, each person who holds an interest or claims to hold native title in relation to land or waters in any part of the determination land, the State Minister and any local government body who is party to the proceeding, are parties to the agreement (s 87A(1)(c)(i)-(ix)); and (d) the terms of the proposed determination are in writing and are signed by or on behalf of the parties and filed with the Court (s 87A(1)(d) and (2)); (e) the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87A(4)(a)); and (f) having satisfied the criteria relevantly detailed, the Court considers the making of orders would be appropriate to do so pursuant to s 87A(4) of the Act. The Court may make a determination in accordance with s 87A(4), as is relevant to these proceedings. 16 The focus of the Court in considering whether the orders sought are appropriate under s 87A(1) and s 87A(4) is on the making of the agreement by the parties. In Muluridji I cited observations of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474. Such remarks are apt to be adopted in this case. His Honour stated: [36] … The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. [37] In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. 17 The Court is not required to make its own inquiry of the merits of the applicants' claim so as to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. The Court may nonetheless consider such evidence to determine whether the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30]. 18 In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated: [38] … State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

SECTION 94A OF THE ACT 19 Section 94A of the Act requires that a native title determination order must satisfy the requirements of s 225 of the Act. Section 225 provides: 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 or 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. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. [emphasis in original] 20 Section 223(1) of the Act defines 'native title' and 'native title rights and interests' as: (1) … the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 21 In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ (with McHugh J agreeing) stated the relevant principles with respect to s 223 of the Act, at 444 - 447 and 454 - 455: (a) A traditional law or custom which is the source of native title rights and interests is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. (b) The origins of the law or custom from which native title rights and interests stem must be found in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of sovereignty by the British Crown - it is only those rules that are "traditional" laws and customs. (c) That normative system must have a continuous existence and vitality since sovereignty. (d) If that society ceases to exist as a group which acknowledges and observes those pre-sovereignty laws and customs, those laws and customs cease to have continued existence and vitality. (e) Only native title rights or interests that existed at the time of the change in sovereignty will be recognised. However, some change to, or adaptation of, traditional laws or customs or some interruption in the enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. (f) In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional laws and customs at times earlier than those described in the evidence. 22 Further, there is authority of this Court, exercising appellate jurisdiction, which lends itself to a determinative conclusion that physical presence is not a necessary requirement for continuing connection. See, for example, Moses v State of Western Australia [2007] FCAFC 78 at [306] per Moore, North and Mansfield JJ.

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