Rainbow on behalf of the Kurtjar People v State of Queensland

Federal Court of Australia|2022-07-26|Before: Rares J

Background 3 The State of Queensland and other parties had agreed previously that the Kurtjar people were entitled to a consent determination of non-exclusive native title over a number of other pastoral leases and other land and waters to the north and west of Miranda Downs. However, at the hearing there was a further issue as to the correct way to describe, in a determination of native title under ss 94A and 225 of the Native Title Act 1993 (Cth), the Kurtjar people's non-exclusive right to access and use resources (the right to take resources issue). 4 I rejected the argument of the State that the determination should describe the purposes for which any native title right or interest could be exercised as part of the expression of its nature and extent under s 225(b). I said in the principal reasons: 324 As Gleeson, Gummow and Hayne JJ said in [Members of the] Yorta Yorta [Aboriginal Community v Victoria] 214 CLR at 455 [84], for the purposes of s 223(1), the: statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question. (emphasis added) 325 The State's suggested qualification is directed at the exercise, not existence of the right to take resources. I reject it for the reasons above. 326 The State's argument about the inclusion of the word "use" in the determination of the right has more substance, but not as an aid to imposing any restriction on the plenary expression of the right in a determination under s 225. 327 In my opinion, rather than expanding on instances of the taking of resources in expressing the right, I am of opinion that a description of the right to take resources that employs the same terminology as in Akiba [v The Commonwealth (2013)] 250 CLR 209, namely "the right to access and to take for any purpose resources in the [determination area]" is the appropriate expression of the Kurtjar people's native title right here: see too Rrumburriya Borroloola Claim Group v Northern Territory (2016) 255 FCR 228 at 252 [366] per Mansfield J. It has the advantage of being an expression construed by the High Court and one that reflects, as so construed, my findings of the plenary expression of the right based on the lay and expert evidence. However, since neither the Kurtjar nor the State addressed on this expression of the right, and it will be necessary for the parties to prepare final orders to give effect to these reasons, they will have a further opportunity to argue whether the final determination should contain it if they consider it not to be preferable to the expression of the right sought in cl (b)(ii) of Sch E of the Form 1 application. 6 CONCLUSION 328 For these reasons, I have concluded that: … (3) subject to hearing from the parties, the Kurtjar people have the non-exclusive right to access and take for any purpose resources in the claim area. (emphasis added)

The outstanding issues 5 The parties were able to agree all of the terms of a determination for both the contested Miranda Downs pastoral lease and the other land and waters the subject of the Kurtjar people's application in this proceeding in the amended Form 1 filed on 2 August 2019, save for three issues on which the State and the Kurtjar people were in dispute at the time of the further hearing on 15 July 2022. Those three issues related to whether the determination should be worded, as the State contended, by including the words in italics below, namely: to express the right to take water as "The right to access and take water from the area for personal, domestic and non-commercial communal purposes" or, as the Kurtjar people contended, by adding the italicised words to my suggested wording of the right to take resources so that it would read: "the right to access and take for any purpose resources including water in or on the claim area" (the water right issue). to express the right to light fires as "the right to light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purpose of hunting or clearing vegetation" (the fire right issue). to define "resources" (the resources definition issue). 6 During the course of argument on 15 July 2022, I indicated that, first, I did not consider that there was any or sufficient evidence to enable the making of any findings of fact that could resolve the fire right issue and, secondly, I did not see any benefit in defining resources for the reasons I explain below. After discussion during the hearing, the State decided not to press for any order in respect of both the fire right and resources issues.

The legislative context 7 Relevantly, ss 223(1), (2) and (3) and 225 of the Native Title Act provide: 223 Native title 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. Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act. … 225 Determination of native title 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: … (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 … (emphasis added) 8 The Court must set out the details of the matters mentioned in s 225 when it makes an order for a determination of native title (s 94A). 9 Two now repealed Queensland statutes affected the common law and statutory rights of riparian owners, occupiers and the public to take water. Those statutes were The Rights in Water and Water Conservation and Utilization Act 1910 (Qld) (the Water Act 1910) and The Water Act of 1926 (Qld) (the Water Act 1926) which repealed (in s (2)(1) and (6)) the Water Act 1910 as amended but preserved in force anything done under that Act. 10 The Water Act 1910 did not define "occupier", but provided, relevantly in ss 5(1), 7, 8 and 9 and 11: PART II- RIGHTS IN NATURAL WATER. 5. The right to the use and flow and to the control of the water at any time in - (a) Any watercourse; and (b) Any lake; and (c) Any spring, artesian well, and subterranean source of supply; shall vest in the Crown for all purposes whatsoever, subject only to the restrictions hereinafter provided and until appropriated under the sanction of this Act or of some existing or future Act. … 7. Except under the sanction of this Act or of some existing or future Act no person shall divert or appropriate any water from any watercourse, lake or spring, save in the exercise of the general right of all persons to use water for domestic and ordinary use and for watering stock from any watercourse or lake vested in the Crown and to which there is access by a public road or reserve. 8. Notwithstanding anything in this Act contained, the owner or occupier of any land adjacent to any watercourse or lake, the bed and banks whereof are by this Act declared to have remained the property of the Crown, shall have the like access for himself, his family, and servants, and for his stock to the part of such bed or bank to which such land is adjacent, and the like use of such part for the grazing of stock, as if this Act had not been passed, until appropriated by or under the sanction of the Crown for any of the purposes of this Act; and such owner or occupier may have and pursue against any person trespassing upon such part any remedy for such trespass which such owner or occupier might have had and pursued if this Act had not been passed and as if such person were a trespasser upon land in the possession of such owner or occupier. … 9. No right to take and divert water from any watercourse or lake for use on any land adjacent to the banks thereof shall be acquired by any owner of such land. No right to the permanent diversion or to the exclusive use of such water shall be acquired by any person whomsoever, by length of use or otherwise than as the same is acquired or conferred under this Act or under some existing or future Act. … 11. Every owner of land alienated from the Crown before the commencement of this Act through or contiguous to which runs any watercourse, or within or contiguous to which is wholly or partly situated any lake, shall in respect of such ownership have a right to the water in such watercourse or lake for the domestic and ordinary use of himself and of his family and servants, and for watering-stock, and for factory use for the purpose of generating steam in steam boilers or condensing plants therein, and for the development of water or electrical power-provided that the water applied to such development be returned to the watercourse or lake undiminished in quantity, such right, so far as regards a waterfall of over fifty feet in height, to be limited to a period of ten years-and for the irrigation of an area not exceeding five acres in extent, being part of such land. For the purposes of this section land in process of alienation at the passing of this Act shall be taken as being already alienated land. (emphasis added) 11 The Water Act 1926 defined "occupier" in s 3 as the person in actual occupation of any land or, if there were none in that position, the person entitled to possession of the land. It provided, relevantly in ss 4, 6, 7, 8, 9 and 10: PART II - RIGHTS IN NATURAL WATERS. 4(1) The right to the use and flow, and to the control of the water at any time in- (a) All watercourses, lakes, and springs which flow through or past, or are situated within the land of two or more occupiers; (b) Any artesian well; (c) Any sub-artesian well and any other subterranean source of supply; shall, subject only to the restrictions hereinafter provided, or until appropriated under the sanction of this Act or of some other Act, vest in the Crown. ... (2) The said right shall be subject to the following restrictions: - (a) It shall not be exercised to the prejudice of any right conferred on and lawfully exercisable by any person or Board by or under an authority given by any Act of Parliament or of any license granted by the Crown; (b) It shall be subject to the rights hereinafter mentioned of the owners or occupiers of land on the banks of watercourses, lakes, and springs; (c) It shall be subject to the rights of the holders of licenses granted under this Act. ... 6. Except under the sanction of this Act or of some other Act, no person shall divert or appropriate any water from any watercourse, lake, or spring, save in the exercise of the general right of all persons to use water or domestic purposes an ordinary use and for watering stock from any watercourse lake or spring vested in the Crown and to which there is access by a public road or reserve. 7. Notwithstanding anything in this Act contained- (a) The owner or occupier for the time being of any land adjacent to any watercourse or lake, the bed and banks whereof are by this Act declared to be the property of the Crown, shall have like access for himself, his family, and servants, and for his stock to the part of such bed or bank to which such land is adjacent, and the like use of such part for the grazing of stock as if this Act had not been passed, provided that such part has not been actually appropriated by or under the sanction of the Crown for any of the purposes of this Act; and (b) Such owner or occupier may have and pursue against any person trespassing upon such part any remedy for such trespass which such owner or occupier might have had and pursued as if this Act had not been passed, and as if such person were a trespasser upon land in the possession of such owner or occupier; but save for the access and use aforesaid, this section shall not be deemed to restrict the right of the Crown to pursue any remedy against any person trespassing upon such bed or bank, nor to entitle such owner or occupier to have or pursue any remedy for trespass against the Crown or a Board or any person acting under the sanction of the Crown or a Board. 8. No right to take and divert water from any watercourse or lake for use on any land adjacent to the banks thereof shall be acquired by any owner or occupier of such land, by length of use or otherwise excepting as herein provided; and no right to the permanent diversion or to the exclusive use of such water shall be acquired by any person whomsoever by length of use or otherwise excepting as herein provided. 9. Every owner or occupier of land abutting on the bank of a watercourse, lake, or spring shall, in respect of such ownership or occupation, have the right to use the water then being in such watercourse, lake, or spring, for domestic purposes and for watering stock or for watering any horticultural or agricultural garden not exceeding one acre in extent provided such garden is used solely in connection with a dwelling-house and not for market purposes, and it shall not be necessary for such owner or occupier to apply for or obtain a license in the exercise of that right, but that right shall not include the authority to construct any works on or within the banks of such watercourse, lake, or spring. 10. The right of the owner or occupier of any work- (a) To use the work for the purpose of water conservation, irrigation, water supply, or drainage, or of the prevention of flooding of land by water, or of changing the course of a watercourse; or (b) To take, use, or dispose of the water contained therein or conserved or obtained thereby; shall be subject to the provisions of this Act. (emphasis added)

The relevant agreed terms of the draft determination 12 The parties have agreed that the final determination should contain par 6, that will set out the Kurtjar people's native title rights and interests in the relevant land and waters, including the water right, subject to pars 7, 8 and 9, in accordance with s 225(b). Paragraphs 7, 8 and 9 provide as follows: 7. The native title rights and interests referred to in order 6 are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders. 8. The native title rights and interests referred to in order 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 9. There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

The water right issue 13 The Kurtjar people argued that the effect of the Water Acts 1910 and 1926 was not to extinguish native title rights and interests in water or to replace those with new statutory rights. They relied on the finding to that effect by Beaumont and von Doussa JJ in Western Australia v Ward (2000) 99 FCR 316 at 422 [400] and asserted that Gleeson CJ, Gaudron, Gummow and Hayne JJ had agreed with that analysis on appeal in Ward v Western Australia (2002) 213 CLR 1 at 151-152 [263]. 14 I reject the Kurtjar people's argument. In Ward 213 CLR 1 the issue was whether s 4(1) of the Rights in Water and Irrigation Act 1914 (WA) extinguished native title because it vested in the Crown the right to the use, flow and control of the water in natural waters. Gleeson CJ, Gaudron, Gummow and Hayne JJ dealt with the consequence in the following passage (at 152 [263]): Part III of the Rights in Water and Irrigation Act provides (in s 4(1)) that the "right to the use and flow and to the control of the water" in natural waters "shall, subject only to the restrictions hereinafter provided, and until appropriated under the sanction of this Act, or of some existing or future Act of Parliament, vest in the Crown". It deals with riparian rights (s 14) and allows riparian owners to apply for special licences to divert and use water (s 15). The vesting of waters in the Crown was inconsistent with any native title right to possession of those waters to the exclusion of all others. (emphasis added) 15 Their Honours overturned the finding of Beaumont and von Doussa JJ in Ward 99 FCR at 422 [400] and held that the appeal from the Full Court should be allowed (see Ward 213 CLR at 212-213 [469] and the orders at 399 which set aside the Full Court's determination of native title). 16 In my opinion, s 4(1) of the Rights in Water and Irrigation Act 1914 (WA) is materially similar to the Queensland legislation in s 5(1) of the Water Act 1910 and s 4(1) of the Water Act 1926. Each provision vested in the Crown the right to the use, flow and control of water in natural watercourses, water bodies and like sources subject to the specific reservation of the common law right of riparian owners and the public (and the additional right of an occupier) to use water for domestic and ordinary purposes, watering stock and reasonably for other purposes (such as for steam generation in s 11 of the Water Act 1910 and limited irrigation in ss 9 and 10 of the Water Act 1926): cf: H Jones & Co Pty Ltd v Municipality of Kingborough (1950) 82 CLR 282 at 299 per Latham CJ, at 324 per Dixon J and at 342-344 per Fullagar J, Halsbury's Laws of England (2nd ed) vol 33 at 593-596 [1035]-[1038]. 17 Parke B, giving the opinion of the Court of Exchequer in Embery v Owen (1851) 6 Exch 353 at 369-372; 155 ER 579 at 585-587 explained that the origin of the common law principle was the public right to have the stream flow in its natural state without diminution or alteration subject to the right of any riparian owner through whose land the stream flowed to make reasonable use of the water as it ran over his land without materially impairing the rights of lower riparian owners and the public to use and apply the water as it flowed downstream. Parke B recognised that the common law right included a riparian owner's limited right, in particular circumstances, reasonably to use the stream for the purpose of manufacturing and irrigation. 18 In Swindon Waterworks Company v Wilts and Berks Canal Navigation Company (1875) LR 7 HL 697 at 704-705, Lord Cairns LC (and see too at 708-709 per Lord Hatherley and at 714 per Lord Selborne) said that a riparian owner had a right "to use the water for all ordinary purposes, namely … ad lavandum et potandum, [for washing or bathing and for drinking] whatever portion of the water may be thereby exhausted". He added that the riparian owner could also use the water for other purposes connected to his tenement in a reasonable way, including for irrigation or manufacturing purposes, but only to an extent that did not significantly impair or diminish the flow for riparian owners lower down the river or stream. 19 The evident legislative intention of the limitation of the vesting created by restrictions referred to in s 5(1) of the Water Act 1910 and s 4(1) of the Water Act 1926 was to preserve or create rights similar to those enjoyed at common law by riparian owners, occupiers and the public in respect of natural watercourses and water bodies that the common law had recognised. It can safely be inferred that the Kurtjar people had similar native title rights and interests in all water accessible to them, since water is essential to life. Thus, s 223(3) of the Native Title Act included as a native title right or interest in the claim area the statutory right to water that the restrictions in the Water Acts 1910 and 1926 had preserved for riparian owners, occupiers and the public, from what of their pre-existing rights to take, use and control water, had vested in the Crown. 20 In my opinion, the reasoning in Ward 213 CLR at 152 [263] supports a construction that s 5(1) of the Water Act 1910 and s 4(1) of the Water Act 1926 vested in the Crown all rights to the use, flow and control of the water in any watercourse, lake, artesian or subterranean body of water except to the extent that ss 7-9 and 11 and ss 6-10 of each Act respectively restricted the plenitude of that vesting by providing otherwise. The consequence is that after the enactment of the Water Act 1926, native title rights and interests in the waters of the claim area had been extinguished except to the extent of the restrictions on the vesting in the Crown of the right to the use, flow and control of water prescribed in that Act and the Water Act 1910. In addition, s 223(3) of the Native Title Act preserved such unvested rights as existed on the enactment of the Water Acts 1910 and 1926 as native title rights and interests. 21 Initially, the State argued that the right to take water should be expressed as limited by restrictions, consistent with those in the Water Acts 1910 and 1926. I reject the State's initial argument. First, the agreed provisions in pars 7 and 8 of the draft determination will ensure that the Kurtjar people's non-exclusive native title rights and interests to access and take water can only be exercised in accordance with the laws of, relevantly, the State, which, of course, include the Water Acts 1910 and 1926. Secondly, it is neither necessary nor desirable to attempt to set out or summarise the nature and extent of the statutory restrictions as to what those Acts did not vest in the Crown in respect of the waters in the claim area: see the principal reasons [306]-[327]. The law of the State applies to and regulates the Kurtjar people's native title rights and interests in the waters of the claim area as persons with an ownership or in rem interest equally with that of all other persons in a similar position in the State. 22 It follows that the Kurtjar people's proposed addition of the words "including water in or on the area" to the wording of "the right to access and take for any purposes resources" that I proposed in the principal reasons, is also not appropriate. Their native title right to take, use and control water in the claim area was extinguished by the Water Acts 1910 and 1926 save to the extent that those Acts restricted the vesting of that right in the Crown. What remained of their native title rights and interests in water is coextensive with what had been the right of any person owning or in lawful occupation of land, or member of the public with a right to do so to access and take water on the claim area consistently with the provisions of the Waters Acts 1910 and 1926 and s 223(3) of the Native Title Act. 23 In light of the potential for uncertainty raised by the competing, and in my opinion erroneous, positions of both the Kurtjar people and the State, I suggested to the parties, prior to the hearing on 15 July 2022, that an appropriate wording of the Kurtjar people's right to take and use water could be "to the use, flow and control of the water in the claim area for any purpose not vested in the Crown in right of the State by The Rights to Water and Water Conservation and Utilization Act of 1910 (Qld) and The Water Act of 1926 (Qld)". 24 The State explained during the hearing on 15 July 2022 that my suggested wording, first, went further than conferring a non-exclusive right because of the inclusion of the word "control" and, secondly, may have had the unintended consequence of unduly restricting non-exclusive native title rights and interests that were unaffected by the Water Acts 1910 and 1926. The State submitted that the word "control" suggested a right to possession of the water which, in accordance with the majority in Ward 213 CLR at 152 [263], the terms of s 5(1) of the Water Act 1910 and s 4(1) of the Water Act 1926 negated because each provision "was inconsistent with any native title right to possession of those waters to the exclusion of all others". 25 In the event, no party objected to wording the Kurtjar people's non-exclusive native title rights and interests in respect of water as "to access and take water in the claim area for any purpose not vested in the Crown in right of the State by reason of restrictions on such vesting in The Rights to Water and Water Conservation and Utilization Act of 1910 (Qld) and The Water Act of 1926 (Qld)".

The fire right issue 26 The Kurtjar people contended that their right to light fires should be expressed as in Sch E of their Form 1, namely the right to "light fires on the area for cultural, spiritual or domestic purposes, including cooking". They objected to the State's addition of a limitation, namely, "but not for the purpose of hunting or clearing vegetation". 27 Despite the State having raised this limitation as an issue prior to the final hearing, there was very limited evidence and no argument at the trial dealing with the correct description of the right to light fires, as opposed to the broader description that I suggested in the principal reasons in respect of the right to take resources issue. The State maintained its earlier proposed limitation in the course of negotiations following delivery of the principal reasons. 28 In attachment F to the Form 1 the Kurtjar people had summarised the factual basis for the description of the right as claimed in par 5.2(g) as "the right to light fires for domestic purposes" and gave references in support of it to par 603 of Dr Martin's first report and supporting parts of the affidavits of several of their witnesses. Dr Martin employed that very description of the right in his report (namely, "the right to light fires for domestic purposes"). There was also evidence at the trial of the Kurtjar people using fire for cooking and smoking ceremonies as well as about the significance of Warren Beasley's evidence that he was a wherrte or fire man, (see principal reasons at [53], [59]; see also at [96]). The Kurtjar people also referred during the hearing on 15 July 2022 to a passage in the written evidence, admitted during the trial, of Joey Rainbow that read: In the old days, Kurtijar would burn their country late in year. This would clean up the country and make sure that when the rain came, it would grow back strong. We only did parts of the country. We called it patch burn. Dad, Grandad Rainbow and the other old fellas told me this. 29 However, that passage did not identify where or how the partial burns occurred (beyond referring to "the old days"). There was no reference to this topic during the final hearing at all in evidence or submissions, no doubt because there was no desire to litigate a live issue about the correctness of the expression of the Kurtjar people's asserted non-exclusive right to light fires in their Form 1. 30 In my opinion, Joey Rainbow's evidence was too uncertain to enable a finding that the claimed non-exclusive right extended to the topics for which the State sought the addition of its words of limitation. 31 In Western Australia v Brown (2014) 253 CLR 507 at 521 [34] French CJ, Hayne, Kiefel, Gageler and Keane JJ said that the identification of rights is an objective inquiry requiring the ascertainment of the legal nature and content of the rights. They emphasised there that "[t]he nature and content of a right is not ascertained by reference to the way it has been, or will be, exercised". Thus, in order to determine whether a native title right or interest has been extinguished, because it is inconsistent with the grant of a right or an interest in land by a Government, their Honours explained that both sets of rights and interests must be identified and then compared and evaluated (253 CLR at 522-523 [37]). 32 Because it is necessary to identify the native title right or interest that is asserted to be inconsistent with a right granted to another under the common law or legislation, the question is whether the grant here of the rights in land and waters in the claim area to each lessee of each pastoral lease was necessarily inconsistent with some, or all, aspects of a native title right to light fires on the claim area generally, or on the land the subject of a particular lease: Brown 253 CLR at 527 [56]-[57]. 33 However, that identification cannot occur on the present evidence. No terms of any pastoral lease are in evidence so it is not possible to address whether, or in what respects, the rights (whether as at the present or any earlier time) of a lessee under any pastoral lease, by express words or necessary implication, are or were inconsistent with the description in the Form 1 of the native title right to "light fires on the area for cultural, spiritual or domestic purposes, including cooking". Nor was there evidence to support the addition of the State's proposed limitation. Given the way in which the parties conducted the trial, the Form 1 description appeared to be accepted as appropriate, even though the State had raised its suggested limitation in the statement of agreed facts. 34 Had there been a live issue warranting a different description, the State should have raised it as an issue at the hearing based on lay and expert evidence, as it did in respect of the right to take resources issue. The State said at the hearing on 15 July 2022 that it did not wish to tender any pastoral lease and asserted that the appropriateness of its limitation could be determined as a pure question of law. No lessee of a pastoral lease in the claim area has made any submission in opposition to the description of the right to light fires in the Form 1. 35 Here, until the State raised the issue of its proposed limitation, as a matter that it pressed as requiring resolution, after I delivered the principal reasons, it, the active parties, including the holders of the pastoral leases within the claim area and the Kurtjar people appear to have proceeded on the basis of accepting the formulation of the right to light fires as asserted in the Form 1. That formulation accords with the evidence, such as it was, of the existence of that right that did not address the subject matter of the proposed limitation. None of the pastoral lease holders raised any issue as to way in which the Form 1 expressed the right either. 36 The State argued that the lighting of fires to hunt or clear vegetation was an exercise of control or possession of land inconsistent with a non-exclusive native title right or interest in that land. There was no evidence about whether or to what, if any, extent the claimed right to "light fires on the area for cultural, spiritual or domestic purposes, including cooking" extended to include "hunting or clearing vegetation" or whether doing so was, in fact, inconsistent with any rights of a lessee under any pastoral lease granted at any time over any part of the claim area. 37 In Ward 213 CLR at 131 [194]-[195] Gleeson CJ, Gaudron, Gummow and Hayne JJ emphasised the importance of evidence for this purpose in respect of the claim of a right to burn off the land. They said: … On the other hand, for the native title holders to burn off the land probably would have been inconsistent with the rights granted to the pastoral leaseholder, so as to bring about extinguishment as identified in par (b)(i) of s 12M(1). It is necessary to use terms such as "many" and "probably" because there are limited findings by the primary judge and by the Full Court as to the relevant content of the native title rights and interests which were the subject of the determination in favour of the claimants. Without that identification it is not possible to say whether there was inconsistency with rights granted under a pastoral lease and to appreciate the consequences of applying s 12M of the State Validation Act. (emphasis added) 38 The reference to s 12M of the State Validation Act was to the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (see at 87 [68]) which appears to be similar to s 23 of the Native Title (Queensland) Act 1993 (Qld). The Kurtjar people and the State did not address the application of any such legislation in their written or oral submissions and I need not do so here. However, the State sought to draw support for its proposed limitation from what Mortimer J said in obiter dicta in Narrier v Western Australia [2016] FCA 1519 at [937]. However, read in context, it may be that what her Honour said does not necessarily do so. She said at [935]-[937]: 935 It seemed from some of the evidence relied upon (such as that from Mr Muir, Mr Lewis and Mr Allan Ashwin about burning off country) that the focus was not on sites and places, as might be thought to be the focus of the right accepted by the State, but a right which has more active content in relation to the natural environment. 936 I am not satisfied such a right has been made out on the evidence. The evidence about traditional burning practices was sparse to say the least. In contrast, the evidence about cleaning rockholes as part of protecting sites of significance was ample, but this falls well within the right in the form accepted by the State. The right has some positive content, which includes the protection of natural resources - that is, it contemplates activities designed to protect and preserve the quality of and access to waterholes. I do not consider any different right of general protection of the environment has been proven. 937 Even if it had, I would have doubts whether it could properly be seen as a non-exclusive right, because the only activity identified as falling within it (burning country) would seem to involve, of its nature, a right to control access and exclude others, which would seem to be inconsistent with a non-exclusive right. (emphasis added) 39 In reality, the State has sought to advance its proposed limitation at all times in a factual vacuum and to have the Court draw an inference to support it where both Ward 213 CLR at 131 [195] and Narrier [2016] FCA 1519 at [936] make clear that evidence, not hypothesis, is necessary to determine whether a native title right exists and is inconsistent with another right at general law or under statute: see too Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 357 [49] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 40 In any event, the exercise of a non-exclusive native title right to light fires, to hunt or clear vegetation, may not be necessarily inconsistent with the presently unknown rights granted to a lessee under a pastoral lease in the claim area. The lighting of such fires, one might think, would be confined and would have to occur consistently with the native title holders' obligations to protect, not destroy, the land and waters. I can see some scope for an argument that, consistently with the cultural and spiritual purposes in the Form 1 expression of the claimed right, the right has to be exercised in a constrained and limited fashion that is unlikely to be inconsistent with the rights conferred by the pastoral lease. After all, the grazing of livestock consumes renewable resources on the land (namely the grass, vegetation and waters), just as controlled burning of grass and other vegetation does. However, that grazing does not necessarily extinguish any rights, including native title rights in the land and waters because the grass regrows and the water replenishes. It is possible to see that the existence of a right to use fire for a limited purpose and in a limited way would not necessarily permanently impair or destroy the rights, or interfere with the possession, of a leaseholder to enjoy the affected part of the land under the pastoral lease. The answer would depend on the presently unknown facts. 41 As I have noted earlier, after argument on 15 July 2022 on the concerns about the lack of a factual context that I discussed above, the State decided not to press for a finding that there should be a different wording for the right to light fires from that claimed in the Form 1.

The resources definition issue 42 Initially, the State also wanted to include definitions of "animal", "resources", "plant" and "water" in the determination so as to clarify the ambit of the right that I had proposed, based on Akiba v The Commonwealth (2013) 250 CLR 209 (see the principal reasons at [306]-[327]), namely "the non-exclusive right to access and take for any purposes resources in the claim area". It contended that the content of the word "resources" was somehow uncertain and that the addition of those definitions would not create constraints or limitations. It referred to the definition of "resources" in sense 1 in the Macquarie Dictionary as "a source of supply, support or aid". It contended that resources of the kind that my proposed formation intended to capture might slip through the net without the benefit of the State's proposed definitions. 43 The State's argument had considerable difficulty. The natural and ordinary meaning of "resources" in the proposed right is comprehended by sense 4 of the Macquarie Dictionary online: "the collective wealth and assets of a country, organisation, individual etc" and sense 3b in the Oxford English Dictionary online: "the collective means possessed by a country or region for its own support, enrichment or defence". 44 In my opinion, there would be no benefit in seeking to formulate an elaborate set of definitions of the ordinary English word "resources" which the High Court accepted should be used in a plenary way in its formulation of the right in Akiba 250 CLR 209. Indeed, there is a real risk that the use of definitions would omit something that would otherwise be a resource for the purpose of the expression of the right. However well drafted a definition in a document or legislation is, once one goes from using general to particular terms, experience teaches that often something is overlooked or not appreciated. The agreed terms of pars 7, 8 and 9 of the draft determination make clear that, whatever is comprehended by "resources" in the proposed right to resources, it is subject to laws and non-exclusive. 45 After I said during the hearing on 15 July 2022 that I thought the State's argument for further definitions was unpersuasive, it did not press for a definition of "resources" in the final determination. 46 Accordingly, the final determination should not include any definitions of "resources" as proposed by the State.

Nomination of a prescribed body corporate 47 On 12 July 2022, pursuant to s 57(2) of the Native Title Act, the applicant lodged with the Court a nomination of Mpundwithal Aboriginal Corporation dated 6 July 2022 by Shirley McPherson as a representative of the common law holders of the Kurtjar people's native title rights and interests, for it to be a prescribed body corporate to perform the functions mentioned in s 57(3) of that Act, together with the minutes of meeting of the directors of Mpundwithal dated 11 July 2022 to accept its nomination. The nomination was filed on 20 July 2022. Those minutes also authorised Joey Rainbow, as chairperson, to sign a written consent to the nomination. On 11 July 2022, Mr Rainbow signed Mpundwithal's consent to accept its nomination under s 57(2). 48 Chelsea Griffin-Breen, a solicitor for the Kurtjar people, deposed in her affidavit sworn on 11 July 2022 that at a meeting held at Normanton Ranger Base on 15 and 16 June 2022, the Kurtjar people authorised, for the purposes of s 251B that: the common law holders would hold their non-exclusive native title rights and interests under the determination that I will make; Mpundwithal would be incorporated; when established, it should be nominated pursuant to s 57(2)(a) and (b) to perform the functions mentioned in s 57(3) to which I have referred a rule book for Mpundwithal be approved. 49 Philip Hunter, another solicitor for the Kurtjar people, annexed to his affidavit sworn on 14 July 2022 the relevant parts of the minutes of the meetings of the Kurtjar people of 15 and 16 June 2022, which included the resolutions and authorisations to which Ms Griffin-Breen had referred. Those minutes explained that Mpundwithal was the bush name of Rolly Gilbert and was also Warren Beasley's totem. 50 On 29 June 2022, the Office of the Registrar of Indigenous Corporations registered the rule book for Mpundwithal as approved by the meeting on 16 June 2022. 51 I am satisfied by the evidence of Ms Griffin-Breen and Mr Hunter, that the native title rights and interests of the Kurtjar people should be held by them as common law holders and not on trust and that the determination should include orders that Mpundwithal, as a prescribed body corporate, should perform the functions mentioned in s 57(3).

Conclusion 52 For the reasons above, I am of opinion that the Kurtjar people's native title rights and interests in water should be expressed as: "to access and take water in the claim area for any purpose not vested in the Crown in right of the State by reason of restrictions on such vesting in The Rights to Water and Water Conservation and Utilization Act of 1910 (Qld) and The Water Act of 1926 (Qld)". The final determination will reflect that wording, the appointment of Mpundwithal, its obligations to perform the functions mentioned in s 57(3) of the Native Title Act as a prescribed body corporate for the Kurtjar people as the common law holders of their non-exclusive native title rights and interests and the other matters that the active parties have agreed to reflect the findings that I made in the principal reasons and the matters the subject of their earlier formal agreements. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

SCHEDULE OF PARTIES QUD 483 of 2015 Respondents Fourth Respondent: CROYDON SHIRE COUNCIL Fifth Respondent: MAREEBA SHIRE COUNCIL Sixth Respondent: ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Seventh Respondent: DORUNDA STATION PTY LTD (ACN 111 342 468) Eighth Respondent: STIRLING LOTUS VALE STATION PTY LTD (ACN 164 248 597) Ninth Respondent: VANROOK STATION PTY LTD ACN 128 492 679 ATF THE VANROOK TRUST ABN 88 585 397 383 Tenth Respondent: HUGHES HOLDINGS AND INVESTMENTS NO. 700 PTY LTD

Rights in Water and Water Conservation and Utilization Act 1910(Qld)s 5(1), ss 5, 7, 8, 9

Rights to Water and Water Conservation and Utilization Act 1910(Qld)

Local Government Regulations 2012(Qld)

Fire and Emergency Services Act 1990(Qld)

Native Title Act 1993(Cth)ss 56, 57, 94A, 223, 225

RARES J: 1 On 15 October 2021 I delivered my reasons for finding that the Kurtjar people had non-exclusive native title rights and interests over the Miranda Downs pastoral lease located in the south west of Cape York: Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251 (the principal reasons). 2 The previous lessee of Miranda Downs, Stanbroke Pty Ltd, had contested the Kurtjar people's claim that they had native title rights and interests over Miranda Downs. Shortly before I published the principal reasons, Stanbroke sold its interest in the pastoral lease to Hughes Holdings and Investments No 700 Pty Ltd. Hughes became a party on 28 September 2021 and agreed that, first, it would be bound by statements of agreed facts filed on 29 April 2019 and 19 November 2019 and secondly, would only be entitled to make submissions on the final form of orders to give effect to the principal reasons.

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