Exercise of power under s 87 of the Act
17 As I noted earlier the Court has power to make an order consistent with the terms in the s 87 Agreement without holding a hearing if the Court is satisfied that an order in or consistent with those terms would be within the power of the Court, and the Court considers it appropriate to make the orders sought. In circumstances where the parties have provided consent orders for the resolution of a native title claim, as a general proposition the Court is more likely to accept that the requirements of s 223 of the Act have been met, and that native title exists, such that the orders sought by the parties are appropriate. In King on Behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 for example Keane CJ said:
The Court does not therefore routinely embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn at [29]-[30] per Emmett J. See also Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494 at [38] per Madgwick J:
State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.
18 In this case it is clear that the State of Queensland has taken steps to satisfy itself that there is a credible basis for this application and the s 87 Agreement between the parties. As I noted earlier, there is no reason to infer otherwise than that the s 87 Agreement was freely entered into on an informed basis by all parties.
19 Section 225 of the Act provides:
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:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(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
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease--whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.
20 The Proposed Determination satisfies s 225 of the Act by proposing orders identifying the Gangalidda People, the nature and extent of their respective native title rights and interests, the nature and extent of Other Interests and the relationship of those non-native title interests with the determined native title rights and interests, and the extent of the Determination Area in which native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. I am satisfied that these native title rights and interests are consistent with the native title rights and interests identified in evidence on which the applicant relies, and the law.
21 I also note the strong connection between the Konka Claim and the findings of the Court in Lardil v State of Queensland, where the successful native title application was made by the same Gangalidda People with the same traditional laws and customs, and similar rights and interests, to the claimants in this application. To that extent I am prepared to accept the evidence in the proceedings of Lardil v State of Queensland as relevant in this case. Importantly, in Lardil v State of Queensland Cooper J was satisfied that the descendants of the Gangalidda People as presented in the genealogies relied on that case were the descendants of a pre-sovereignty society or community governed by traditional law and customs, and thus satisfied s 223(1) of the Act. I also note as relevant in this case the following finding of Cooper J in Lardil v State of Queensland:
197 In respect of the original Gangalidda people, I am satisfied that at the time of sovereignty, the following rights and interests were possessed under traditional laws acknowledged, and traditional customs observed, by them in relation to part of the land and waters of the area claimed as the traditional territory of the Gangalidda peoples, and that such rights survived the assertion of sovereignty:
1. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed by and under those traditional laws and customs.
2. The right to fish, hunt and gather, including the right to hunt and take turtle and dugong in the inter-tidal zones and the waters above and adjacent thereto, for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.
3. The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under those traditional laws and customs.
4. The right to access the land and waters seaward of the high water mark, and so much of the waters of the Albert River as fall within the claim area, in accordance with and for the purposes allowed under traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within the traditional territory of the Gangalidda peoples for the purposes of ritual or ceremony.
5. The right to construct, repair and maintain rock fishtraps in the inter-tidal zone and to take fish therefrom in accordance with such traditional laws and customs.
6. The right to access so much of the waters of the Albert River as fall within the claim area for the purpose of hunting, fishing and foraging for living and plant resources for personal, domestic or non-commercial consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.
22 Similarly, the determinations in 2010 and 2015 giving effect to the existence of exclusive and non-exclusive rights in the Gangalidda People in country contiguous to the Konka Claim area, and which also relied on the evidence outlined earlier in this judgment, are supportive of agreement of the parties in respect of native title vesting in the Gangalidda People in respect of the Konka Claim area and the entry of the parties into the s 87 Agreement.
23 I note that, at the time the Konka application was made, a pastoral lease was held over the Konka Claim area. The pastoral lease was held by Walaji Pty Ltd from 13 September 2017, on trust for the Walaji Trust, being a charitable trust for the benefit of current and future generations of members of the community including the Gangalidda People. The lease is for a period of 30 years, and is for the purpose of "rolling term lease - pastoral" within the meaning of s 164(1) of the Land Act 1994 (Qld). It is common ground that this lease is a pastoral lease held by native title claimants within the meaning of ss 47 and 248 of the Act. The sole shareholder of Walaji Pty Ltd is Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC ICN 7365 (GGNTAC), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).
24 Relevantly, s 47 of the Act provides:
Pastoral leases held by native title claimants
When section applies
(1) This section applies if:
(a) an application under section 61 is made in relation to an area; and
(b) when the application is made, a pastoral lease is held over the area by:
(i) any of the persons who made the application claiming to hold the native title or any other persons with whom they claimed to hold the title; or
(ii) a trustee, on trust for any of those persons; or
(iii) a company whose only shareholders are any of those persons.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests by any of the following acts must be disregarded:
(a) the grant of the lease itself;
(b) the creation of any other interest itself in relation to the area;
(c) the doing of any act under the lease or by virtue of holding the interest.
Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.
Effect of determination
(3) If the determination on the application is that the native title exists and is held by the persons mentioned in subparagraph (1)(b)(i), (ii) or (iii):
(a) the determination does not affect:
(i) the validity of the lease; or
(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies in relation to the grant of the lease and any other prior act affecting the native title; and
(c) any person, trustee or company holding the lease as mentioned in subparagraph (1)(b)(i), (ii) or (iii) has no procedural rights as holder of the lease in relation to any act, in relation to the land or waters, to which Subdivision P of Division 3 (which deals with the right to negotiate) applies.
25 It is common ground that, in this case, the terms of the s 87 Agreement satisfied ss 47(1)(b)(ii) and 47(2) of the Act, such that it is within the Court's power to make orders granting the applicant the exclusive right to possession, occupation, use and enjoyment of the area described as Lot 4536 on SP204559.
26 The Proposed Determination provides that GGNTAC is to be the prescribed body corporate for the purposes of ss 57(2) and (3) of the Act, act as agent for the Gangalidda people who are the common law holders of the native title rights and interests, and perform the functions set out in the Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (PBC Regulations). The applicant submits that the rules of the GGNTAC satisfy the requirements of the PBC Regulations on the basis that:
its list of members and rules of membership provide that all Gangalidda members are persons who are included, or proposed to be included, in the Proposed Determination as native title holders; and
the objects of the GGNTAC provide that one of its purposes is to become a registered native title body corporate.
27 In his affidavit of 18 February 2019 Mr Phillip Hunter, the solicitor for the applicant, deposed that:
A properly notified and convened meeting of the Gangalidda people and the Garawa people was held at Burketown on 21 November 2018, at which time the Gangalidda People and the Garawa people gave their consent as initial holders for GGNTAC to be the agent prescribed body corporate for the Proposed Determination as required for reg 4A(a) of the PBC Regulations.
The Gangalidda People - as the proposed subsequent holders - then nominated GGNTAC to be the agent prescribed body corporate for the Proposed Determination, as required by reg 4A(b).
Following the conclusion of the meeting of the Gangalidda people and the Garawa people the board of GGNTAC met and resolved unanimously to accept the nomination of GGNTAC to be the agent prescribed body corporate for the Proposed Determination.
28 The applicant further submitted that a nomination by the Gangalidda People that GGNTAC would perform the functions in s 57(3) of the Act, and GGNTAC's consent to do so for the Proposed Determination, were filed by the applicant in this proceeding on 15 February 2019, satisfying the requirements of s 57(2)(a) of the Act.
29 Finally, I understand that the applicant provided successive drafts of his outline of submissions to the respondents, that the State of Queensland has responded with comments, and that those comments have been accepted by the applicant.
30 In the circumstances of this case I am satisfied that the requirements of s 87 have been satisfied. The Court has power to make the orders sought by the applicant, to which the respondents have agreed, and I consider it appropriate that the Court do so.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.