Owens on behalf of the Tagalaka People v State of Queensland

Federal Court of Australia|2012-12-10|Before: Logan J

THE APPLICATION OF SECTION 87 to the tagalaka people claim 34 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 19 December 2000 (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 Applications are valid and were made in accordance with s 61 of the Act; and (ii) The Applications are 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 played an active role 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 material relied upon by the applicants is capable of satisfying s 47B of the Act; (v) The connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determination; (vi) The requirements of s 94A and s 225 of the Act are satisfied; and (vii) The proposed determination is unambiguous and certain as to the rights declared.

THE APPLICATION OF SECTION 87A to the tagalaka people #2 claim 35 The requirements of s 87A 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 7 May 2002 (s 87A(1)(b)); (b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b)); (c) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to s 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2)); (d) as all parties to the proceeding signed the proposed minute of consent, the registrar was not required to give notice to the other parties to the proceeding (s 87A(3)); (e) as no objection was received, the Court is not required to take into account any objection made by the other parties to the proceeding (s 87A(8)); (f) the Court is satisfied that an order in, or consistent with, the terms sought would be within the power of the Court (s 87A(4)(a)); and (g) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)). The short minute complies with s 94A and s 225 of the Act (s 87A(4)); and (h) 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 played an active role 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 material relied upon by the applicants is capable of satisfying s 47B of the Act; (v) The connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determination; (vi) The requirements of s 94A and s 225 of the Act are satisfied; and (vii) The proposed determination is unambiguous and certain as to the rights declared.

determinations pursuant to section 56 and 57 of the act 36 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. As to the proposed determinations, Mr Bell has deposed in his affidavit, affirmed and filed in both proceedings on 23 November 2012, the native title is not to be held on trust. It provides for an Aboriginal corporation, the Tagalaka Tribal Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. That body corporate was registered on 15 December 1994. It will perform the functions mentioned in s 57(3) of the Act. 37 The Court notes that Mr Bell has exhibited to his affidavit, affirmed and filed in both proceedings on 23 November 2012, a Notice of Nomination and Consent of the Prescribed Body Corporate, which satisfies the requirements of s 57(2) of the Act. 38 Further, Mr Bell affirms that the Tagalaka Tribal Corporation intends drafting a new set of rules so as to satisfy the requirements of s 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). 39 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. 40 For the reasons given, the Determinations are now made. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

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, 47B, 55, 56, 57, 61, 66, 87, 87A, 94A, 223, 225

Moses v State of Western Australia [2007] FCAFC 78 Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 Smith v State of Western Australia (2000) 104 FCR 494 Wik Peoples v Queensland (1996) 187 CLR 1 The Honourable Nicola Roxon MP, Attorney-General: Echoes of Mabo Speech delivered to the AIATSIS Native Title Conference, 6 June 2012

REASONS FOR JUDGMENT 1 The applications that are the subject of these proceedings are 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 determinations. 2 In particular, for determination today, is QUD 6109 of 1998, "Tagalaka People" and, pursuant to orders of 3 October 2012, QUD 6020 of 2001, "Tagalaka People #2 Part A". The orders of 3 October 2012 further contemplate the later, separate consideration of whether native title rights and interests exist in respect of another portion of land on which there is a pastoral development holding, which is to be "Tagalaka People #2 Part B". 3 The applications for orders in the terms of the proposed determinations for QUD 6109 of 1998 and QUD 6020 of 2001 (Part A) are being heard together as they are geographically proximate and entail consideration of materially the same anthropological evidence concerning the Tagalaka People. The applicants seek a determination of native title on behalf of the Tagalaka People over various lands in and proximate to the township of Croydon in the Gulf Country of north-western Queensland. 4 The properties over which the proposed consent determination will be granted are described in more detail in the maps in Schedule 1 to the determinations. 5 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 together with, as relevant to QUD 6020 of 2001, s 87A of the Act. 6 These claims have been long in their gestation. I made observations earlier this 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. 7 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, 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. Recently, it has been announced by the Attorney-General that this legal assistance to pastoralists will cease with effect from the end of this year. Such value judgments are for the Executive Government of the day to make. What I can say, 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 Attorney has 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) requires 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. There is much work yet to be done in the native title list in this State and much scope for misunderstanding and unnecessary acrimony and delay in relation to native title claims in the absence of responsible legal representation. 8 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. 9 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. 10 The applicant has filed the following documents principally relevant to QUD 6109 of 1998: (a) Affidavit of Mr Gregory Bell affirmed and filed on 23 November 2012, exhibiting: (i) Dr Sandra Pannell, 'Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Draft Connection Report', June 2002 (the "Connection Report"); (ii) Dr Sandra Pannell, 'Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Supplementary Report (No 1)', October 2006; (iii) Dr Sandra Pannell, 'Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Tagalaka Claimant Statements' (the "Tagalaka Claimant Statements"); and (iv) Dr Sandra Pannell, 'Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Executive Summary of Connection Materials', October 2011 (the "Executive Summary"). (b) Affidavit of Mr Gregory Bell affirmed on 23 November 2012 and filed on 26 November 2012, deposing to compliance with s 56 and s 57 of the Act regarding the prescribed body corporate and exhibiting: (i) a certificate of incorporation of the Tagalaka Tribal Aboriginal Corporation dated 15 December 1994; and (ii) 'Notice of Nomination and Consent of the Prescribed Body Corporate'. (c) Outline of submissions in support of the proposed consent determination filed on 29 November 2012; (d) Further amended native title determination application (Form 1) filed on 30 November 2012; and (e) Proposed orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 3 December 2012. 11 The applicant has filed the following documents principally relevant to QUD 6020 of 2001: (a) Affidavit of Mr Gregory Bell affirmed and filed on 23 November 2012, exhibiting: (i) Dr Sandra Pannell, 'Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Draft Connection Report, June 2002' (the "Connection Report"); (ii) Dr Sandra Pannell, 'Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Supplementary Report (No 1)', October 2006; (iii) Dr Sandra Pannell, 'Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Tagalaka Claimant Statements' (the "Tagalaka Claimant Statements"); and (iv) Dr Sandra Pannell, 'Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Executive Summary of Connection Materials', October 2011 (the "Executive Summary"). (b) Affidavit of Mr Gregory Bell affirmed on 23 November 2012 and filed on 26 November 2012, deposing to compliance with s 56 and s 57 of the Act regarding the prescribed body corporate and exhibiting: (i) a certificate of incorporation of the Tagalaka Tribal Aboriginal Corporation dated 15 December 1994; and (ii) 'Notice of Nomination and Consent of the Prescribed Body Corporate'. (c) Outline of submissions in support of the proposed consent determination filed on 29 November 2012; (d) Further amended native title determination application (Form 1) filed on 30 November 2012; and (e) Proposed orders and Determination of Native Title by Consent (s 87A Agreement), signed by the parties and filed on 3 December 2012.

SECTION 87 OF THE ACT 12 The applicants in QUD6109 of 1998 submit that it is appropriate in the circumstances for the Court to exercise its discretion under s 87(1A) of the Act. 13 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. 14 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. 15 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]. 16 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 87A OF THE ACT 17 The applicants in QUD 6020 of 2001, insofar as the proceeding encompasses Tagalaka #2 Part A, submit that it is appropriate in the circumstances for the Court to exercise its discretion under s 87A(4) of the Act. The submissions of the applicants in support of the Court making orders in the terms of the proposed consent determination, confirm the utilisation of s 87A of the Act as the orders sought pertain to a part of the area of the application in QUD 6020 of 2001. 18 Section 87A of the Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where: (a) the period specified in the notice given under s 66 of the Act has ended (s 87A(1)(b)); (b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b)); (c) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to s 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2)); (d) the registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3)); (e) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8)); (f) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and (g) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)). 19 In May v State of Western Australia [2012] FCA 1333 at [13], Gilmour J, citing his Honour's earlier decision in Goonack v State of Western Australia [2011] FCA 516 considered the operation of s 87A(4) as follows: [25] The terms of s 87A(4) of the Native Title Act do not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. It is appropriate for the Court to make orders under s 87A where no evidence of the primary facts substantiating native title has been received if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Brown v Western Australia at [23]-[24] in respect of s 87A and Hughes v Western Australia [2007] FCA 365 at [9]; Ward v Western Australia [2006] FCA 1848 at [8]. The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under section 87: Brown v Western Australia [207] FCA 1025; Nangkiriny v Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James v Western Australia [2002] FCA 1208; Hughes v Western Australia and under alternatively s 87 and s 87A; Brown v Western Australia. [26] The requirements of s 87A(4) of the Native Title Act will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] and Lovett v Victoria [2007] FCA 474 at [37]. [emphasis added] 20 As the Court is guided by the same principles as between s 87 and s 87A of the Act in exercising its discretion, these reasons for judgment will consider together the requirements of the Act which inform the Court as to whether a proposed determination of native title by consent is appropriate.

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