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[2013] FCA 957
Federal Court of Australia
2013-09-23
Logan J
Original judgment source is linked above.
THE APPLICATION OF SECTION 87 to the Warrungnu people claim 27 The requirements of s 87 of the Act have been satisfied in the present case. In particular: (a) The period specified in the notice given under s 66 ended on 20 December 2005 (s 87(1)); (b) The parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i)); (c) The parties have recorded their agreement in a short minute of consent (s 87(1)(b)); (d) An order in terms of or consistent with the short minute of consent would be within the Court's power (s 87(1)(c)) 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 short minute complies with s 94A and s 225 of the Act (s 87(1)(c)); 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 determination; (v) The requirements of ss 56, 94A and 225 of the Act are satisfied; and (vi) The proposed determination is unambiguous and certain as to the rights declared.
satisfying section 57 of the act 28 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. 29 As to the proposed determination, Ms Jude has deposed in her affidavit, affirmed and filed on 31 May 2013, the native title is not to be held on trust. It provides for an Aboriginal corporation, the Goondaloo Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. That body corporate was registered on 10 November 2008 pursuant to the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth). It will perform the functions mentioned in s 57(3) of the Act. 30 The Court notes that Ms Jude has exhibited to her affidavit, affirmed and filed on 31 May 2013, a Notice of Nomination and Consent of the Prescribed Body Corporate, which satisfies the requirements of s 57(2) of the Act. It is noted that the ICN of the Goondaloo Aboriginal Corporation is in fact ICN 7140, not ICN 7858 as stated in error at paragraph 2 of the Nomination and Consent. 31 The Goondaloo 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 and the definition of Warrungnu People in rule 3, operate to ensure that all members of the corporation at the time of the determination are included or proposed to be included in the determination as persons who have native title rights and interests in relation to the determination area: reg 4(2)(b). 32 Furthermore, the Indigeneity requirement of s 29.5(a) of the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth) is met because all members of the Goondaloo Aboriginal Corporation are required to be Aboriginal or Torres Strait Islander descended from four apical ancestors of the Warrungnu People. 33 Finally, and at the risk of 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 regional directions hearings, 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, involves a considerable investment of public money. 34 For the reasons given, the Determinations are now made. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.
Morganson on behalf of the Warrungnu People #2
State of Queensland
REASONS FOR JUDGMENT 1 The application that is the subject of these proceedings, QUD 111 of 2004, "Warrungnu People #2", is for the determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the land described in Schedule 1 to the proposed determination. 2 The applicant seeks a determination of native title under s 61 of the Act on behalf of the Warrungnu People over various lands and waters in the Herbert/Burdekin region that cover a total area of approximately 2,644 sq km. 3 The respondents to the Application are the State of Queensland, Tablelands Regional Council, Ergon Energy Corporation Limited, together with various pastoral holders. 4 The properties over which the proposed consent determination will be granted are described in more detail in the map in Schedule 1 to the determination. One of the Commonwealth Parliament's objectives in respect of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in s 87 of the Act by the Native Title Amendment Act 2009 (Cth). 5 Like many such claims, this claim has been long in its gestation. I made observations last year in Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800 and Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 that native title claims which linger unresolved on a court list are an affront to our system of justice. I related in those cases how Parliament's objective of consensual resolutions had been met. The statements which I then made are just as applicable to this case. The achievement of Parliament's objective would not have been possible without much hard and dedicated work by experienced legal advisers, the responsible actions of the parties guided by their advisers and, especially latterly, intensive case management, particularly by the Court's registrars. I commend the parties and the legal practitioners involved in cases being heard today for the work latterly undertaken in bringing them to final, consensual resolution. 6 In the aftermath of Wik Peoples v Queensland (1996) 187 CLR 1, the Executive Government of the Commonwealth made provision for legal assistance to be provided to pastoralists in relation to native title claims. Over the time during which I have been responsible for the management of the list of native title cases in this region, and as I have stated in other determinations, I have directly observed how, in combination with responsible legal representation of applicants, via the North Queensland Land Council, of the State, via the Crown Solicitor and of other respondents, this legal assistance to pastoralists has repeatedly and beneficially contributed to the administration of justice and thus to Parliament's goal of national reconciliation in this important area of the Court's jurisdiction. This legal assistance to pastoralists was terminated with effect at the end of 2012 by the then Commonwealth Executive Government. Such value judgments are for the Executive Government of the day to make. What I can say again, and have in earlier determinations stated, based on direct experience, is that the addressing of the hitherto "unacceptably long time" for the resolution of native title cases and the recent experience of "faster and better claim resolution" to which the then Attorney General made reference (Echoes of Mabo: AIATSIS Native Title Conference, 6 June 2012, Speech by the Honourable Nicola Roxon MP, Attorney-General, Quarter/6-June-2012---Echoes-of-Mabo---AIATSIS-Native-Title-Conference.aspx Accessed 7 December 2012) is best achieved by a combination of responsible legal representation of all interested parties and intensive case management and proactive, targeted use of alternative dispute resolution where appropriate by the judges and registrars of this Court. As I noted this year in Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 at [4]: [T]o my direct observation in court in respect of the regions of the State for which I have had case management responsibility, the collective representation of pastoral respondents enabled by that scheme greatly facilitated the responsible, consensual resolution of native title claims and removed much of the angst such claims might otherwise have occasioned such respondents. 7 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made in King v Northern Territory of Australia [2011] FCA 582 (King) per Mansfield J. His Honour made a number of observations about the preamble to the Act. I am 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 exactly apposite in the present proceedings also. As I observed in Muluridji, I propose therefore to adopt them as my own in these reasons for judgment without further attribution. 8 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. 9 The applicant has filed the following documents principally relevant to the consent determination in QUD 111 of 2004: (a) Affidavit of Mr Jennifer Jude sworn and field on 31 May 2013, exhibiting: (i) The Goondaloo Aboriginal Corporation Rules; (ii) Extracts of directors from the Officer of the Registrar of Indigenous Corporations; and (iii) Nomination and consent form of the Prescribed Body Corporate. (b) Affidavit of Ms Jennifer Jude affirmed and filed on 7 August 2013, exhibiting: (i) Dr James Weiner, 'Warrungnu Native Title Application Anthropological Overview', March 2004 (Weiner Report); (ii) Dr John Burton, 'Supplementary Report - Warrungnu Native Title Application (writing for the purpose of assisting in the Native Title Application of the Warrungnu People)', 30 September 2009 (Burton Report); (iii) Dr James Weiner, 'Warrungnu Native Title: Supplementary Report', June 2011 (Weiner Supplementary Report); and (iv) Dr James Weiner, 'Warrungnu Native Title: Supplementary Report No 2: Warrungnu in its Regional Settings, June 2013 (Weiner Supplementary Report No 2). (c) Affidavit of Ms Jennifer Jude affirmed and filed on 22 August 2013, exhibiting: (i) Affidavit of Doris Fred affirmed 25 June 2004; (ii) Affidavit of Reginald Joseph Morganson affirmed 25 June 2004; (iii) Affidavit of Isaac Benjamin Hooligan affirmed 17 June 2011; (iv) Affidavit of Charges Robert Morganson affirmed 26 July 2011; (v) Affidavit of Reginald Joseph Morganson affirmed 27 July 2011; (vi) Affidavit of Bill Morganson affirmed 28 July 2011; (vii) Affidavit of Reginald Joseph Morganson affirmed 19 April 2013; (viii) Affidavit of Shane Douglas Freeman affirmed 27 June 2013; (ix) Affidavit of Gemma Anna Sanford affirmed 9 July 2013; (x) Affidavit of Josephine Simpson nee Fred affirmed 23 July 2013; (xi) Affidavit of Jennifer Hooligan affirmed 23 July 2013; and (xii) Affidavit of Brian James Le Grande affirmed 23 July 2013. (d) Outline of Submissions in support of the proposed consent determination filed on 22 August 2013; (e) Agreement under s 87 of the Act and draft consent determination orders, filed by the State of Queensland on 23 August 2013; and (f) Submissions satisfying s 57 of the Act filed on 27 August 2013. SECTION 87 OF THE ACT 10 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where: (a) The period specified in the notice given under s 66 of the Act has ended (s 87(1)); (b) There is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i)); (c) The terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b)); (d) The Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and (e) Having satisfied the criteria relevantly detailed, the Court considers the making of orders as it appears to the Court to be appropriate to do so pursuant to s 87(1A) of the Act. The Court may make a determination in accordance with s 87(2), as is relevant to these proceedings. 11 The focus of the Court in considering whether the orders sought are appropriate under s 87(1) and s 87(2) 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. 12 As such, the Court is not required to make its own inquiry of the merits of the applicant's claim 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 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]. 13 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 14 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] 15 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. 16 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 [46] to [55] and [80] to [83]: (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. 17 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.
(2002) 214 CLR 422
(2001) 115 FCR 109
(2000) 104 FCR 494
(1996) 187 CLR 1
(2002) 117 FCR 6