The agreement reached between the parties
7 The application was filed on 21 August 2015. The parties to the application have reached an agreement as to the terms of a determination and the form of the orders appropriate to recognise native title rights and interests held by the Girramay People. The parties ask the Court to make orders under s 87 of the Act in accordance with the terms agreed between the parties.
8 On 10 December 2009, Dowsett J made a consent determination in favour of the Girramay People in respect of 4,795 km2 of land and waters adjacent to the present claim area: Girramay People v State of Queensland [2009] FCA 1450. The Court ordered, consistently with the terms agreed by the parties, that the Girramay People were entitled to non-exclusive use and enjoyment of land and waters, in accordance with their traditional laws and customs. The parties agreed that non-exclusive native title rights and interests held by the Girramay People to use and enjoy the land and waters should be recognised. The native title is held on trust by the prescribed body corporate, the Girramay People Aboriginal Corporation.
9 In support of the agreement, the following connection material has been filed:
(1) the Applicant's Nomination and Consent of the Prescribed Body Corporate filed 25 June 2018;
(2) the Applicant's expert connection report of Associate Professor Sandra Pannell PhD filed 29 June 2018;
(3) affidavits filed 24 August 2015 with the Form 1 on behalf of the Applicant from:
(a) Claude Frank Beeron sworn 10 June 2015;
(b) Abraham Muriata sworn 10 June 2015;
(4) an affidavit filed 15 January 2018 on behalf of the Applicant from Abraham Muriata sworn 27 June 2017;
(5) an affidavit filed 23 May 2018 on behalf of the Applicant from Abraham Muriata sworn 16 February 2018;
(6) affidavits filed 29 June 2018 on behalf of the Applicant from:
(a) Claude Frank Beeron sworn 25 November 2015;
(b) Abraham Muriata sworn 27 January 2016;
(c) Damien Dickman sworn 24 June 2016;
(d) Tracey Dickman sworn 24 June 2016;
(e) Abraham Muriata sworn 27 July 2016;
(7) a Statement of Abraham Muriata filed 29 June 2018 sworn 9 August 2017.
10 The report of Associate Professor Pannell, an anthropologist, explains that the Girramay people identify themselves by reference to three elements of cultural and social identity: the Girramay language; an identifiable group of Aboriginal people claiming a kinship connection to forbears who were Girramay-speaking; and a defined area of land and waters. The word "Girramay" distinguishes the Girramay people from other Aboriginal peoples and other named native title claim groups due to language, antecedents and country.
11 Associate Professor Pannell considered oral testimony and written records to determine that the Girramay antecedents possess Girramay people connections, are linked to Girramay country, are recognised and accepted by neighbouring regional community, and continue to acknowledge and observe traditional laws and customs. Genealogical information indicates that the grouping of Girramay people in the present day is comprised of approximately 830 people, suggesting that the population of Girramay people may have recovered to some extent from the depredations of European colonization. Ultimately, Associate Professor Pannell concludes that contemporary Girramay people are connected to identified members of the pre-sovereignty group of Girramay people due to genealogical links and the acknowledgement and observation of traditional Girramay laws and customs. The contemporary Girramay people have a continuing connection to Girramay country.
12 Section 87 of the Act gives the Court the power, at any stage of the proceedings after the end of the period specified in any notice given under s 66 of the Act, to make an order consistent with the terms of an agreement between the parties to the proceeding without holding a hearing in relation to the application if it appears to be appropriate to do so.
13 The conditions under s 87 of the Act that enable the Court to make the determination without a hearing are:
(1) the period specified in the notice given under s 66 of the Act in relation to the Application has ended and there is an agreement between all the parties on the terms of a proposed order of the Court in relation to the proceedings: s 87(1)(a);
(2) the terms of the proposed determination agreement are in writing and are signed by or on behalf of the parties and filed with the Court: s 87(1)(b);
(3) the Court is satisfied that an order in, or consistent with, those terms would be within its power: s 87(1)(c);
(4) the Court considers it appropriate to make the orders sought: s 87(1A) and (2).
14 The Act encourages parties to take responsibility for resolving the proceedings without the need for the Court to intervene by way of a hearing. Therefore, when the Court is examining the appropriateness of an agreement reached by the parties, the focus of the Court in considering whether the orders sought are appropriate under ss 87(1) and (2) is on the making of the agreement between the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J said at [36] to [37]:
The Act is designed to encourage parties to take responsibility for resolving proceedings 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.
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.
15 It is not the role of the Court to inquire as to the merits of the claim. The Court must be satisfied that the orders sought are supported and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court is to consider evidence only for the purpose of determining whether the State is acting in good faith and has made a rational decision: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [29]- [30] per Emmett J. In reference to the "evidence upon which the parties have based their decision to reach a compromise", Greenwood J held in Wik and Wik Way Native Tile Claim Group v State of Queensland (2009) 258 ALR 306 at [16] and Kowanyama People v State of Queensland [2009] FCA 1192 at [22] that while it is not necessary for the Court to consider the body of material that would be available to it in the course of a contested hearing, it ought to have regard to sufficient material which is capable of demonstrating that the agreement and the proposed orders are "rooted in reality".
16 State and Territory governments are responsible for ensuring that community interests are protected by getting involved in a process that assesses the underlying evidence as to the existence of native title. In this case, the State is satisfied that the group is an appropriate one to be recognised as holders of native title rights and interests, that it is appropriate to recognise the rights and interests proposed and that it is appropriate for the State to enter into the determination.
17 Section 223 of the Act provides:
Common law rights and interests
(1) The expression native title or native title rights and interests means 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 the 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.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
Statutory rights and interests
(3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.
…
Subsection (3) does not apply to statutory access rights
(3A) Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).
Case not covered by subsection (3)
(4) To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):
(a) in a pastoral lease granted before 1 January 1994; or
(b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.
18 Section 225(a) of the Act requires that the determination set out who are the persons, in each group of persons, holding the common or group rights comprised by the native title area. That is satisfied in this application.
19 The requirement that the determination set out the nature and extent of the native title rights and interests in relation to the area has also been satisfied, as required by s 225(b).
20 The Court has jurisdiction to make the orders sought pursuant to s 81 of the Act.
21 The formal requirements in s 87 of the Act have been satisfied:
(1) the period for notification of the Application under s 66 of the Act has ended: s 87(1)(a);
(2) the parties reached an agreement as to the terms of a determination of native title: s 87(1)(a)(i);
(3) the parties have recorded their agreement in the Minute of Consent: s 87(1)(b); and
(4) an order in terms of the Minute, or consistent with the Minute, would be within the Court's power because:
(a) the application is valid and in accordance with s 61 of the Act;
(b) the application is for a determination of native title in relation to an area for which there was no approved determination of native title: s 13(1)(a);
(c) the Minute agreed to by the parties complies with ss 94A and 225 of the Act: s 87(1)(c).
22 In addition, it is also appropriate for the Court to make the orders sought because:
(1) the parties have had independent and competent legal advice and have freely entered into the agreement;
(2) the parties have agreed that the nature and extent of interests and the proposed determination is unambiguous and certain as to the rights declared;
(3) there are no proceedings before the Court relating to native title determination applications that cover any part of the area that is the subject of this application that would otherwise require orders under s 67(1) of the Act; and
(4) the State has played an active role in the negotiation of the determination and, in doing so, has taken an interest in the proceeding on behalf of the community and given appropriate consideration to the connection material.