CONSIDERATION
21 A number of matters bear upon the exercise of the Court's power to make a determination of native title. Amongst other things, the Court must have a valid application before it, there must not have been any previous determination made in respect of the proposed determination area (s 68); and the determination must not overlap the area of another determination application (s 67(1)). Each of these conditions is satisfied in the present case and I am satisfied that the Court does have the power to make the proposed determination sought by the parties.
22 There is a direct connection between the current application and the findings of the Court in the first Waanyi determination. In the third judgment delivered by Dowsett J in relation to the first Waanyi determination, which was based on material that is also before this Court, his Honour said:
[12] The material provides an overview of the anthropology, archaeology and history of the Waanyi People. Professor Trigger says:
"Waanyi" is an Aboriginal language of the southern Gulf of Carpentaria region. The existence, name and territorial location of the language has been well documented by ethnographers since the coming of European and Asian people to the region.
I believe that it may be safely inferred from the earliest ethnographic accounts that at the time that the British Imperial Crown asserted sovereignty in relation to the relevant parts of the Australian continent (being, I understand, in 1788), there was a group of Aboriginal people in the southern Gulf of Carpentaria region who had in common that they spoke the Waanyi language and acknowledged and observed a common body of laws and customs, and by those laws and customs had connection with, and rights and interests in relation to country, including country within the present claim area and also beyond that claim area in the Northern Territory.
[13] The first recorded European expedition into the mainland areas of the southern Gulf of Carpentaria was in 1841 when Stokes, in the Beagle, sailed up the Albert River to the present location of Burketown. He travelled 40 miles upstream and then continued on foot. He was so impressed with the soil and vegetation of the area that he called it "the Plains of Promise". Overland explorers included Ludwig Leichhardt in 1845, Augustus Gregory in 1856 and Burke and Wills in 1861. In the following year, Norman, Landsborough and McKinley travelled through the region in search of Burke and Wills. In 1862, Landsborough wrote:
The [Gregory] River is here a quarter of a mile wide, running strong in two channels ….. it is the finest and grandest looking inland river I have seen in Australia, and the country it runs through consists of rich-soiled plains, just sufficiently wooded for pastoral purposes.
[14] The first pastoral runs were established at Beames Brook on the Gregory River and further east on the Leichhardt in 1864. Frank Hann established Lawn Hill in 1875 and Gregory Downs, Riversleigh and Lilydale were established later in that decade. The arrival of European settlers brought great hardship to indigenous people in the area, including the Waanyi. Conflict between settlers and traditional owners led to the dispersal or destruction of the Nguburindi people, whose land was to the east of traditional Waanyi country, and of the Injilanji people, whose land was to the south. The Waanyi people succeeded them as traditional owners of those areas or parts thereof. Waanyi people are now largely concentrated in communities situated in Doomadgee, Mornington Island, Burketown, Robinson River, Borroloola, Camooweal and Mt Isa. However they have maintained close contact with the determination area.
[15] Chapter 1 of the connection report gives a comprehensive overview of Waanyi society at first contact with European explorers and settlers and the impact of that contact on the lives of the people. Reference is made to the "wild times" when there were "violent reprisals for killing cattle and competition over land and water, as well as the emergent need for pastoral labour". Problems were unhesitatingly resolved by the use of violence. I have read the affidavit of Mary Lorraine, filed on 5 November 2010. Ms Lorraine speaks about her father's first contact with Europeans and the impact of the "wild times" on Waanyi people. The affidavit provides an important insight into the way in which Waanyi people have lived on, and maintained their connection to their country.
[16] The reports and the affidavits clearly demonstrate the existence of organized Aboriginal occupation and possession of the determination area. They demonstrate that the Waanyi people maintained an unbroken physical connection with their land during the period of early European settlement and that such connection has continued to the present day. It has involved their living in bush camps, working on the large pastoral properties, observing traditional laws and practices and utilising the resources of the country.
[17] Professor Trigger demonstrates, in chapter 6 of the connection report, that traditional laws and customs affiliate particular families to areas within the determination area. Such laws and customs are derived from traditional beliefs about creation and the importance of the acknowledgement and observance of those laws and customs. Evidence of such observance is provided in the connection report.
[18] I conclude that the Waanyi people are descended from a society of Aboriginal people who occupied the determination area continuously prior to sovereignty and thereafter. Such society was united by the acknowledgement and observance of traditional laws and customs. I am satisfied that the rights and interests which I recognize today are derived from the continuous observance of these laws and customs. Those conclusions are supported by the anthropological material.
23 Further materials were prepared by the applicant to provide evidence of the connection of the Waanyi people to the current determination area in accordance with the traditional laws that they acknowledge and the traditional customs that they observe. This includes an anthropological report by Professor David Trigger and Ms Pauline Cook that provides a map showing the general locations of Waanyi estates and of sites within and nearby to the determination area.
24 The report sets out in its summary of opinions that the Waanyi People are a group of Aboriginal people who collectively acknowledge traditional laws and observe traditional customs by which they possess rights and interests in and have a continuing connection with the proposed determination area. It notes that the proposed determination area is divided into Area A, known as "Guyanda country", and Area B known as "Turn Off Lagoon/Corinda country". It states the authors' opinion that the laws and customs by which contemporary Waanyi People hold rights and interests in the determination area have been adapted since European settlement and sovereignty. However, the laws and customs have had a continuous existence and there are genealogical links for contemporary families to those forebears who occupied Waanyi country at the time of effective establishment of sovereignty in the southern Gulf country.
25 The report states that although it is difficult to establish a precise eastern boundary for Waanyi country in the vicinity of Area B at the time of establishment of sovereignty, it is possible that the area was part of a zone of transition towards what was Nguburindi country to the east and/or Yangarella (Yukulta, what is now known as Ganggalida) country to the north. If there has been actual Waanyi succession eastwards into Area B the report records the opinion of its authors that this process has been complete since at least the 1930s and that there is agreement on the part of the Ganggalida people to the east and north and Garawa people to the north and west that Area B is Waanyi country arising from regional traditional law and custom.
26 The report expresses the opinion of its authors that the traditional laws and customs for the westernmost part of the determination area (Area A) include that it is part of what is known as "Guyanda country" and its main Dreaming significance is Red Kangaroo. The Waanyi apical ancestor with particularly close ties to this area was Johnny Rockland, whose Waanyi name was Guyanda.
27 In relation to the easternmost part of the determination area (Area B), known as "Turn Off Lagoon/Corinda country", the main Dreaming significance is Emu. This area includes locations of much historical residence and ceremonial activities among Waanyi People, all of whom hold generic rights in the area. Waanyi families with locality specific rights in the adjacent country to the west, known as "Najabarra/Nicholson River Country", have particular traditional knowledge of and historical connection with this area.
28 The report concludes that there has been substantial continuity in the traditional connection of Waanyi people to the areas now claimed.
29 Affidavits given by Garrick George, Lloyd O'Keefe and Garry Rockland provide further detail of the continuing and strong family connections with the land the subject of the application.
30 I am satisfied that the claim has been subjected to appropriate anthropological consideration, that the State of Queensland has discharged its responsibility in making an appropriate assessment of the application for the determination of native title and that there is a rational basis for its agreement to the proposed determination.
31 I now turn specifically to the matters in s 225 about which the Court must set out details: NT Act s 94A.
32 In relation to s 225(a), being the identity of the holders of the native title rights and interests, the applicants named in the application are Gary Rockland, Lloyd O'Keefe, Ada Walden and Terence George. The native title claim group identified in the application includes the same description of the Waanyi People as that which applied in the first Waanyi determination, however, the proposed determination before the Court includes within the description of the native title holders in Schedule 1 an additional apical ancestor in paragraph (p) being Minnie (Myboogundji) who is to be recognised as having been a Waanyi person from whom living Waanyi people may be descended.
33 There is a history to the addition of Minnie to the native title claim group.
34 Before the making of the first Waanyi determination, two other decisions were published by the Court in relation to a dispute between the then applicant and a respondent to the claim, Gregory Phillips: Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 and Aplin on behalf of the Waanyi People v State of Queensland (No 2) [2010] FCA 1326 (Waanyi (No 2)).
35 In Waanyi (No 2) the Court summarised the dispute and its resolution as follows:
[2] One outstanding issue, which was resolved by my previous decision, was a dispute between the applicant and Mr Gregory Lloyd Phillips, who is a respondent in the proceedings. Mr Phillips is descended from a lady called Minnie, who was, as the evidence before me disclosed, an Aboriginal woman who died near Burketown in about 1943. She had married a Chinese man and had children by him, including a number of daughters who survived her and had issue. Mr Phillips is Minnie's great grandson. Mr Phillips claims that Minnie was a Waanyi woman and that, as her descendent, he is entitled to membership of the claim group. Such membership, as defined for the purposes of these proceedings depends primarily upon descent from a recognized Waanyi ancestor. The claim group does not recognize Minnie as such. There are many other descendants of Minnie who would be included in the claim group if Mr Phillips were successful in establishing his claim.
[3] This question was ventilated at great length before me during 2009. The matters in dispute involved the proper formulation of the criteria for membership of the claim group and whether Minnie satisfied that description. After considering the evidence concerning Minnie's background and life, I declared as follows:
The laws and customs of the Waanyi People concerning who are Waanyi People are that a person is a Waanyi person if, and only if
(a) the other Waanyi people recognise that he or she is descended (which may include by adoption) from a person whom they recognise as having been Waanyi; and
(b) the person identifies him or herself as a Waanyi person.
[4] I also declared that Minnie:
(a) during her life identified herself as a Waanyi woman;
(b) was understood by the late Roy Seccin, from the early to mid 1920s, to be a Waanyi woman;
(c) has been understood by Yuen Hookey, from about 1942, to be a Waanyi woman;
(d) was from 1888 until at least 1939 recognized by the Waanyi people at Lawn Hill as a Waanyi woman, and
(e) was, from about 1916 until her death in 1943, recognised by the Waanyi people at Burketown as a Waanyi woman.
36 The Court did not name Minnie as part of the claim group. It noted that there was an ongoing reluctance to accept her as an apical ancestor, and noted that the question of Minnie's status was not finally resolved in its reasons, because the matter had to be left to the claim group: Waanyi (No 2) at [21]. The Court noted that the description of the claim group was drawn in a way which would not exclude the inclusion of new members as apical ancestors after the determination, if the native title holders conclude that they are in fact apical ancestors.
37 By further good faith negotiations the native title claim group has now agreed to accept Minnie as being an apical ancestor and her descendants as being Waanyi people. The affidavit evidence of Mr Walkley sets out in some detail the steps taken to ensure that the claim group was properly constituted and voted in favour of the inclusion of Minnie within the group. He records, by reference to exhibited primary documents, that a meeting was advertised with the assistance of the Waanyi Native Title Aboriginal Corporation and the Carpentaria Land Council Aboriginal Corporation and that the meeting notice included a description of the business of the meeting as including whether or not Minnie was to be included in the determination orders. On 29 April 2021 a meeting was conducted and a resolution passed providing authorisation by the native title claim group for the inclusion of Minnie. Mr Walkley's evidence demonstrates that the decision-making process used by the native title claim group on 29 April 2021 to make this resolution was relevantly the same as that used to make authorisation decisions in relation to the first Waanyi determination. Furthermore, Minnie is now included in the native title claim group in the proposed determination by the consent and agreement of the native title claim group and by the consent of the parties to the s 87 agreement.
38 The applicant relies on these circumstances to support the submission that it is in the interests of justice and consistent with the overarching purpose of s 37M(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) for the Court now to make a determination that includes Minnie as an apical ancestor, despite Minnie not being named as a member of the native title claim group in the application filed with the Court. They submit that there is no prejudice to any party in so doing, and that s 84D of the NT Act provides jurisdiction for the Court to do so.
39 Although the description of the claim group in the application has not been amended to conform with the description in the proposed determination (which includes Minnie as an apical ancestor), the Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: Billy Patch on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] (French J); Watson on behalf of the Nyikina Mangala People v Western Australia (No 6) [2014] FCA 545 at [33] (Gilmour J).
40 In the present case, to the extent that the disconformity between the application and the proposed determination may give rise to a lack of authorisation, I find pursuant to s 84D(4) of the NT Act that it is in the interests of justice and appropriate for the Court to make the proposed determination. A similar approach has been taken by the Court on a number of occasions, including in Watson at [35]. In short form, my reasons for this conclusion are, first, that any defect in authorisation is purely formal, and does not sound in any prejudice to any of the parties, all of whom have agreed to the terms of the proposed determination. Secondly, the questions of ongoing authorisation and the inclusion of Minnie were properly notified to the native title claim group and specifically approved by it. Thirdly, the proposed inclusion of Minnie was widely notified and advertised as being one of the matters to be considered at the authorisation meeting. Fourthly, having regard to the findings in Waanyi (No 2) and the agreement of the parties to the proposed determination, there can be no dispute that Minnie was a Waanyi person. Fifthly, there will, by the making of the consent determination, be a satisfactory resolution of the application for all parties. Finally, I accept the submission advanced by the applicant that it is consistent with the overarching purpose stated in s 37M of the FCA Act to include Minnie in the list of known Waanyi ancestors in this way.
41 In relation to s 225(b), the nature and extent of native title rights and interests, the determination area is defined in order 3 as being the land and waters described in Schedule 2 and depicted in the map attached to Schedule 4, to the extent that those areas are within the External Boundary (as defined) and not otherwise excluded by the terms of Schedule 3. To the extent that there is any inconsistency between the written description and the map, the written description prevails.
42 The agreement reached by the parties recognises the native title claim group's exclusive rights to possess, occupy, use and enjoy the area described in Part 1 of Schedule 2 (other than in relation to "water" as defined in the Water Act 2000 (Qld)). The parties agree that this area is part of the Doomadgee Deed of Grant in Trust (DOGIT) issued under the Land Act 1994 (Qld) and that one or more members of the claim group occupied the Doomadgee DOGIT at the time the determination application was made. Accordingly, I am satisfied that the criteria in s 47A(1) are met such that any prior extinguishment effected by the grant of the area in trust must be disregarded: s 47A(2).
43 In addition, the determination recognises the following non-exclusive native title rights (other than in relation to "water") over the balance of the determination area described in Part 2 of Schedule 2. To:
(a) access, to be present on and to traverse the area;
(b) hunt, fish and gather on the area;
(c) take natural resources (as defined) from the area;
(d) live on the land, to camp and, for those purposes, to erect shelters and other structures;
(e) light fires on the area for domestic purposes including cooking and heating but not for the purposes of hunting or clearing vegetation;
(f) conduct religious, spiritual and ceremonial activities on the area;
(g) be buried on, and bury Native Title Holders on, the area;
(h) maintain, in the area, places and areas of importance or significance to the Waanyi People under their traditional laws and customs and to protect those places and areas, by lawful means, from physical harm; and
(i) share or exchange Natural Resources from the area.
44 The rights set out in (b)-(d) and (i) are somewhat different to the rights agreed in the first Waanyi determination and result from the fruitful discussions between the parties that led to their agreement.
45 The proposed determination provides that the native title rights and interests in the land are subject to and exercisable in accordance with the laws of the State of Queensland and the Commonwealth, and the traditional laws acknowledged and traditional customs observed by the native title holders. There are no native title rights in or in relation to minerals or petroleum.
46 In relation to s 225(c) and (d), the nature and extent of the other interests, these are identified in Schedule 5 of the proposed determination, and the relationship between the native title rights and interests and the other interests is provided for in order 12.
47 In relation to s 225(e), the determination area includes areas "not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease" (see Part 1 of Schedule 2, the second row of the table in Part 2 of Schedule 2 and the maps at Schedule 4). For those areas, the proposed determination identifies whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others (see orders 6, 7 and 9). This requirement is satisfied.
48 Turning to other formal matters, by s 56(1), the Court must make a determination as to whether the native title is to be held in trust and, if so, by whom. The evidence indicates that the native title is not to be held in trust. Order 14 provides accordingly.
49 By s 57(2), the Court must determine which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions set out in s 57(3). The Waanyi Native Title Aboriginal Corporation (ICN 7448) is a prescribed body corporate, has been nominated as the relevant body corporate and has consented to its nomination. It is the same body corporate as that which was prescribed in the first Waanyi determination. It is appropriate that the same entity be prescribed for both determinations: see Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69; 276 FCR 203 at [74]-[75] (Mortimer and Colvin JJ). Order 15 provides accordingly.
50 The Court has not been made aware of any circumstance that would indicate that the making of the proposed determination is inappropriate. I am satisfied that it is appropriate to give effect the parties' agreement by making the proposed determination by consent.