Prior on behalf of the Juru (Cape Upstart) People v State of Queensland

Federal Court of Australia|2011-07-26|Before: Rares J

The application 6 The applicant claims to be comprised of representatives of the descendants of the Juru 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 the area of Cape Upstart, including the National Park that exists there. It claims that the Juru people held those rights and interests both before, and continuously after, European settlement and the exercise of British, and then Australian, sovereignty over those lands and waters. 7 These proceedings began 14 years ago when a claim was lodged with the National Native Title Tribunal by some of the applicant and their now, sadly, late ancestors on behalf of the Birri Gubba (Cape Upstart) people. 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 28 June 1999. The notification period under s 66(3) of the Act ended on 14 March 2000 (see: s 87(1)). The five respondents who elected to be joined to these proceedings are the State, Whitsunday Regional Council, Ergon Energy Corporation Limited and two commercial fishermen, the latter having been joined in 2003 (see Birri Gubba v State of Queensland (2003) 127 FCR 348 (Drummond J)). 8 In October 2009 Dr Sandra Pannell completed a detailed anthropological connection report. Later, in 2011, she prepared an updated executive summary for use in the negotiations between the parties to arrive at the consent determination. Those documents provided the foundation of the Juru people's claim, which I am satisfied have been carefully reviewed by the State, its lawyers and anthropological experts. Dr Pannell's research led to a re-evaluation of the nominal description of the identity of the people who trace their connection to the land and waters back to the period before 1861, as I explained in Prior on behalf of the Juru (Cape Upstart) People v State of Queensland [2011] FCA 783. 9 Subsequently, the application has been amended to change, first, the names of the individuals comprising the applicant as a consequence of some of them having passed away, secondly, the authorisation information, thirdly, the native title rights and interests that were claimed and fourthly, earlier this month, on the basis of Dr Pannell's research, the name of the people on whose behalf the claim was made. That name was changed to the "Juru (Cape Upstart) People". As I explained when I granted that application, Dr Pannell's research resulted in her opining that, in fact, the Juru people were the traditional owners of the land and waters claimed and that they were a tribe or clan forming a distinct part of larger cultural block known as "Birri Gubba". Her analysis concluded that the Juru tribe acknowledged and observed, in common with other people in the area, some of the laws and customs of other people who spoke the Birri language. She opined that what fundamentally united the Birri Gubba people as a society was: their acknowledgement of their common language, Birri; their common acknowledgement of the territorial and social limits of that language and the people who speak it; their common acknowledgement and identification of the named groups or clans comprising that society; and their common self-identification as Birri Gubba people. 10 Dr Pannell concluded that the people who formed the community or group claiming rights and interests over Cape Upstart were properly able to be identified as "Juru". On the basis of this conclusion, Dr Pannell opined that the use of the description "Birri Gubba" in the name of the people in the original application appeared to have been mistaken. This was because that name referred to the broader community or society, of which those who claim native title rights in respect of Cape Upstart formed a distinct subgroup, known as "Juru" or "Yuru": Prior [2011] FCA 783 at [3]-[6].

The subject matter of the determination 11 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. 12 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. 13 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). 14 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 Dr Pannell'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. 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. 15 I have considered the evidence of Dr Pannell on this basis, together with the other evidence. Her connection report included genealogies that she prepared, of all of the persons who were identified as ancestors of the claim group in the application. She opined that an Aboriginal person will be a member of the Juru people if he or she has a genealogically-related, apical antecedent who had been born either at or in the vicinity of Cape Upstart or on land, such as neighbouring pastoral stations, that is traditionally associated with the Juru people. This opinion, for which Dr Pannell gave extensive factual support in her report, led her to conclude that a member of the Juru people must be a bloodline descendant of one of the Aboriginal persons listed in Schedule 1 of the proposed orders. 16 The connection report drew on an unpublished 2006 history report prepared for the applicant by Dr Fiona Skyring. The history report noted that Captain Cook had sailed past Cape Upstart in HMS Endeavour in 1770, as had Phillip Parker King in 1819. It stated that the first documentary record of interaction between English maritime explorers and the local indigenous people occurred between 25 and 30 June 1839 when HMS Beagle, under the command of J. Lort Stokes, was anchored at a bay on the west side of the Cape. Stokes recorded a number of encounters that he and his crew had with the indigenous people, including the discovery of a fishing weir they had made across the lower reaches of the Burdekin River (that Stokes had called the "Wickham River"). Initially, Stokes had sent out an exploring party of two who, he recorded: "… saw a few natives, but they were too shy to communicate. One was discovered on a long flat, crawling on his hands and knees, to catch a glimpse of the strange intruders, and looking more like a great insect than a man. In the distance up the river a good many smokes appeared; but I doubt whether this may be considered as denoting a densely populated country, as fires are kindled by the Australian natives, both as signals and for the purposes of hunting". (cited in Skyring 2006: 24) Stokes and a party climbed to the top of the Cape and also observed "a few natives", but he recorded that one landing party had frightened them so much that they all dispersed except for a youth who refused to communicate with the visitors. 17 Subsequently, in 1843 a party from HMS Fly went ashore at Cape Upstart near the fishing weir and made contact with a significant number of indigenous people there. Dr Pannell's report also recorded a number of other contacts by Europeans with the indigenous people at Cape Upstart before European settlement of the area began in 1861. These included a remarkable account of a shipwrecked sailor, James Morrill, who lived with a number of tribes between 1846 and 1863 until he presented himself to European settlers. Morrill learnt eight different dialects as he moved among tribes with each tribe speaking a different dialect. He recorded that "Mall Mall" was the "native name" of the Burdekin River and, for a time he lived with a tribe that were in the area of Port Denison, as Bowen was previously called. He attended gatherings of tribes, including one occasion when he estimated over 1,000 people were at a corroboree. Dr Pannell said that it was apparent from Morrill's account that members of the Port Denison "tribe" travelled to and used the resources of the Cape Upstart area. 18 Dr Pannell opined on the basis of her and others' research, that the rights and interests in the land and waters that are claimed by the Juru people are possessed by them under the traditional laws that they acknowledge and the traditional customs they observe. She concluded that the Juru people have continued from before the time of European settlement in 1861 to the present to acknowledge and observe traditional laws and customs and that by those laws and customs the Juru people have a connection with the land and waters the subject of the proposed determination.

Jurisdictional findings 19 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. 20 I am comfortably satisfied that the State has done so. After it received Dr Pannell's connection report in late October 2009, the State had it and other material evidence that the applicant had filed in the proceedings reviewed by one of its senior anthropologists and counsel. Later, the anthropologist and counsel conferred with officers of the State Crown Solicitor and of the Aboriginal and Torres Strait Islander Land Services branch of the Department of Environment and Resource Management. Next, lawyers for the State and the applicant exchanged responses in relation to the report. Then in June 2010, lawyers and anthropologists acting for the State travelled to Cairns to confer with lawyers for the applicant and Dr Pannell to discuss her connection report. Following this, on 18 June 2010 the applicant provided the State with a summary statement that explained the interrelationship between the Birri Gubba regional system and the Juru people's claim. This led the State, after a review by its lawyers, counsel and its senior anthropologist, to inform the applicant on 1 July 2010 that it was willing to proceed to a substantive negotiation for a consent determination. In addition, the State undertook, and then provided to the parties, tenure research in relation to Lot 135 on NPW 463, being the area that includes the land and waters the subject of the proposed orders. 21 The approach of the solicitors for the applicant in negotiating the terms of the proposed consent determination and the two indigenous land use agreements has been equally thorough and considered. The rights and interests in the land and waters covered by the proposed orders are within the National Park and, so, the State's rights and interests in them are more likely to be affected than those of any other person. It is safe to infer that the limited interests of Ergon Energy, as an electricity supplier, have been sufficiently protected by the indigenous land use agreement it has negotiated. It is also likely that any effect on the interests of Whitsunday Regional Council has been properly considered by its legal representatives. 22 The proposed orders do not appear to have any adverse effect on whatever rights the two commercial fishermen respondents may have. However, the proposed orders do not determine the question left open by Drummond J in 2003 as to whether the two commercial fishermen are legally entitled to fish commercially in the waters of the National Park: Birri Gubba 127 FCR at 363 [52]. 23 On the basis of Dr Pannell'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. 24 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 signed an agreement on 15 July 2011 that the Court be asked to make a consent determination in the terms that I will pronounce today (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: 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); 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)); 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 because they acknowledge that the Juru people's native title rights and interests to possession, occupation, use and enjoyment of those lands and waters will not be to the exclusion of others. 25 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 parties has been legally represented in the proceedings, at the mediations that have taken place in the Tribunal and in the negotiation of the signed agreement to which the Court is being asked to give effect. Both the applicant and the State have prepared detailed and well researched written submissions in support of the proposed orders. They also relied on evidence of each 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 State and Ergon Energy that are recorded as part of the proposed orders. And, the orders reflect the existence of Whitsunday Regional Council's rights and interests to enter the land and waters to perform its functions under the Local Government Act 2009 (Qld) as well as the non-exclusive rights and interests, if any, under the Fisheries Act 1994 (Qld) of the two commercial fishermen. 26 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 27 On 6 July 2011, two members of the applicant, Margaret Smallwood and Renarta Prior, with two members of the claim group, Angelina Akee and Norma Lenoy, indicated, as representatives of the Juru people, that they intend to have the native title held on trust by, Kyburra Munda Yalga Aboriginal Corporation, a prescribed body corporate for the purposes of s 56(2) of the Act. I am satisfied by their respective affidavits that, first, Ms Akee was entitled to be nominated as a director of the corporation in her capacity as a descendant of Jinnie Ross and, secondly, Mrs Lenoy was entitled to be nominated as a director in her capacity as a descendant of Nellie Steel. The corporation consented to its proposed appointment on the same day. I am satisfied by the evidence of Ricardo Martinez, 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 28 These parties have taken an unacceptably long time to reach this position. In September 2006, nearly nine years after they began, the proceedings were allocated to my docket on the basis that they were ready to be managed to a final hearing. Over the subsequent four years I held many directions hearings endeavouring, but failing, to identify the issues and prepare for a final hearing. 29 On 14 May 2008, for reasons I gave then, I ordered that the applicant pay 50% of the costs of the State relating to the waste of time and resources that had occurred through failures of the applicant or the then representative body, Central Queensland Land Council to identify, over nearly 10 months, one person whom they or it contended should give preservation evidence despite their filing and withdrawing five different lists of proposed witnesses: Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659. 30 The tragedy is that in the inordinately long time since these proceedings were commenced, some elders of the Juru people have passed away. Those persons had detailed knowledge of their people's traditional laws and customs and their connection to the claimed land and waters. One of them, a distinguished 87 year old man, was a named member of the applicant. He attended a directions hearing in Mackay on 18 May 2007 and informed me in very clear detail, from the well of the Court, of an outline of his knowledge that would have been pertinent to the prompt disposition of the proceedings. Before he could give preservation evidence he passed away, like a number of others from whom Dr Pannell, or other anthropologists on whose research she drew, had taken histories. 31 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." 32 Delays of the kind experienced in this litigation cannot be tolerated. Justice delayed is justice denied. As Lord Hailsham of St Marylebone LC said in Reg v Lawrence [1982] AC 510 at 517B: "Where there is delay the whole quality of justice deteriorates." Since recent amendments to the Act and the introduction of Pt VB of the Federal Court of Australia Act 1976 (Cth), the Court has sought to use its case management powers to focus parties in native title cases on identifying the real issues in the proceedings and preparing matters promptly for hearing or consent determination. 33 On a more positive note, 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. This has resulted in the position that the Court can today make a consent determination.

Lack of signature by one member of the applicant on indigenous land use agreements 34 On 4 July 2011 I was informed that one of the named members of the applicant, whom I infer was Ms Carol Prior-Patterson, had not yet signed or delivered a copy of either indigenous land use agreement. Her signature was also absent from, but not necessary for, the notice of nomination and consent of the prescribed body corporate to hold the native title on trust. I ordered that any member of the applicant who had not signed or delivered a copy of those two agreements by 14 July, should file and serve an affidavit explaining the reasons for not doing so by 15 July. No such affidavit was filed. Accordingly, the absence of Ms Prior-Patterson's signature on these agreements is unexplained. 35 This raises a similar issue to that considered by Reeves J in QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412 at 438-439 [84]-[95]. His Honour decided that it was not necessary for all persons who comprised the applicant in proceedings in this Court to be unanimous in deciding to enter into an indigenous land use agreement. Reeves J held that the requirement in s 24CD(1) of the Act that all persons in the native title group (as defined in s 24CD(2)(a)) had to be parties to an indigenous land use agreement was capable of being satisfied by making a party to it any one or more of those persons whose names appeared in the Register of Native Title Claims as an applicant or member of an applicant in relation to a claim to hold native title. His Honour held that s 24CD(1) and (2) had the effect that if one such person were made a party to an indigenous land use agreement, he or she would, as a representative, bind the others and make them parties to the agreement (QGC 189 FCR at 437 [84]). 36 His Honour arrived at that decision after full argument. No argument has been put that Reeves J's construction of s 24CD(1) and (2) was wrong. In these circumstances I should follow his Honour's construction. Accordingly, it is not necessary that Ms Prior-Patterson sign the indigenous land use agreements and one or more of the other members of the applicant can enter into them on behalf of them all.

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 Juru 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.

Pt VB Fisheries Act 1994(Qld)

Native Title Act 1993(Cth)ss 13(1)(a), 24CD(1)

The nature of a consent determination 3 The recognition and protection of native title 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, 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. 4 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 Juru 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. 5 The Court has not had a hearing of 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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