FEDERAL COURT OF AUSTRALIA

Morganson on behalf of the Warrungnu People #2 v State of Queensland [2013] FCA 957

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth)

BY CONSENT THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms set out below (the “determination”).

2.    Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

3.    The Determination Area is the land and waters described in Schedule 1, and depicted in the map attached to Schedule 1.

4.    Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.

5.    The native title is held by the Warrungnu People described in Schedule 3 (the “native title holders”).

6.    Subject to paragraphs 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are:

(a)    other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b)    in relation to Water, the non-exclusive rights to:

(i)    hunt, fish and gather from the Water of the area;

(ii)    take and use the Natural Resources of the Water in the area; and

(iii)    take and use the Water of the area,

for personal, domestic and non-commercial communal purposes.

7.    Subject to paragraphs 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 are the non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

(b)    camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;

(c)    hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;

(d)    take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

(e)    take and use the Water of the area for personal, domestic and non-commercial communal purposes;

(f)    conduct ceremonies on the area;

(g)    maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;

(h)    teach on the area the physical and spiritual attributes of the area; and

(i)    light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

8.    The native title rights and interests are subject to and exercisable in accordance with:

(a)    the Laws of the State and the Commonwealth;

(b)    the traditional laws acknowledged and traditional customs observed by the native title holders; and

(c)    the terms and conditions of the agreements referred to in paragraph 1 of Schedule 4.

9.    The native title rights and interests referred to in paragraphs 6(b) and 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

10.    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).

11.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.

12.    The relationship between the native title rights and interests described in paragraphs 6 and 7 and the other interests described in Schedule 4 (the “other interests”) is that:

(a)    the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;

(b)    to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and

(c)    the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

Definitions and Interpretations

13.    In this determination, unless the contrary intention appears:

“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);

“Laws of the State and the Commonwealth” means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

“Local Government Acts” has the meaning given in the Local Government Act 2009 (Qld);

“Local Government Area” has the meaning given in the Local Government Act 2009 (Qld);

“Natural Resources” means:

(a)    any animal, plant, fish and bird life found on or in the lands and waters of the Determination Area; and

(b)    any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area,

that have traditionally been taken and used by the native title holders, but does not include:

(a)    animals that are the private personal property of another;

(b)    crops that are the private personal property of another; and

(c)    minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

“reserve” means a reserve dedicated or taken to be a reserve under the Land Act 1994 (Qld);

“Water” means:

(a)    water which flows, whether permanently or intermittently, within a river, creek or stream;

(b)    any natural collection of water, whether permanent or intermittent; and

(c)    water from an underground water source.

Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

THE COURT DETERMINES THAT:

14.    The native title is not held in trust.

15.    The Goondaloo Aboriginal Corporation ICN 7140, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    (be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

Schedule 1 — DETERMINATION AREA

A.    Description of Determination Area

The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, to the extent that they are within the External Boundary Description as described in Part 3 below, and depicted on the determination map, excluding the areas described in Schedule 2.

Part 1    Exclusive Areas

All of the land and waters described in the following table and depicted in dark blue on the determination map.

Part 2    Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the determination map.

* denotes an area to which s 24KA of the Native Title Act 1993 (Cth) applies

Part 3    External Boundary Description

Commencing on the eastern bank of Anthill Creek at the intersection of that creek and the Burdekin River, being a corner of Lot 6 on Plan AP20093 (shown on sheet 9 of 51 of the plan forming part of the determination made by the Federal Court on 1 August 2012 in QUD85/05 Gugu Badhun People #2 (QC05/7)); then generally north easterly, generally north westerly and generally northerly along the northern boundary of that lot to the centreline of an unnamed road at Latitude 18.300328˚ South, further described as: then extending generally north easterly, generally north westerly and generally northerly along the eastern banks of Anthill Creek and the eastern banks of Leichhardt Creek to the centreline of that unnamed road to Longitude 145.032616˚ East; then generally north-westerly and generally easterly through the following coordinate points:

and on to the northern most north east corner of Kinrara Pastoral Lease (Lot 537 on Plan SP132224) being a point on the southern boundary of Lot 11 on Plan CP895989; then southerly, easterly and generally northerly along the southern and eastern boundaries of Lot 11 on Plan CP895989 to the southern boundary of Lot 4 on Plan GU44; then northerly, easterly, generally northerly and westerly along the southern, eastern and northern boundaries of that lot to the eastern bank of Gunnawarra Creek; then generally north easterly, generally easterly and generally south easterly along the eastern banks of Gunnawarra Creek, the southern banks of Rudd Creek and the southern and western banks of the Herbert River to a point opposite the intersection of that river and the southern bank of Cameron Creek at Latitude 18.090786˚ South; then easterly across to the southern bank of Cameron Creek and generally south easterly, generally northerly, again generally south easterly and generally north easterly along the southern banks of that creek to Longitude 145.558899˚ East; then generally southerly through the following coordinate points:

then on to a western boundary of the national park being Lot 67 on Plan NPW1148, formerly Lot 18 on Plan NPW667 at Latitude 18.073150˚ South (being a point on the north western boundary of discontinued native title determination application QUD6029/99 Badjuballa People (QC99/37) filed in the Federal Court on 3 November 1999); then generally south westerly along that national park boundary to a south western corner at Latitude 18.075990˚ South; then south westerly to the eastern boundary of Cashmere Pastoral Lease (Lot 2 on Plan CWL3600) at Latitude 18.076254˚ South; then generally southerly and generally south westerly along the eastern boundaries of that pastoral lease and Goshen Pastoral Lease (Lot 480 on Plan SP179213, formerly Lot 4801 on Plan PH2275), to the northern bank of the Herbert River; then south westerly along a north western boundary of Lot 18 on Plan NPW936 to the southern bank of that river; then generally westerly along the southern banks of that river to an eastern boundary of Lot 2 on Plan GU31; then southerly, westerly, again southerly and generally south easterly along the south eastern boundaries of that lot, the eastern boundary of Yammanie Pastoral Lease (Lot 4573 on Plan PH820) and the northern boundaries of Wairuna Pastoral Lease (Lot 3 on Plan WU32) to the western boundary of the former forest reserve being Lot 750 on Plan AP6351 (being a corner on the western boundary of Lot 18 on Plan NPW936) at Longitude 145.672729˚ East; then generally north westerly along the western boundary of that former forest reserve to Latitude 18.408324˚ South; then generally south easterly through the following coordinate points:

then to an eastern boundary of Wairuna Pastoral Lease (Lot 3 on Plan WU32) at Longitude 145.680249˚ East; then generally south easterly along the eastern boundaries of that lot to Latitude 18.479744˚ South; then generally southerly through the following coordinate points:

then south to a northern corner of Lot 6 on Plan AP20093 (shown on sheet 13 of 51 (Diagram ‘D’) of the plan forming part of the determination made by the Federal Court on 1 August 2012 in QUD85/05 Gugu Badhun People #2 (QC05/7)) at Longitude 145.711079 East˚; then generally southerly, north westerly, generally south westerly, generally northerly and generally south westerly along the northern boundary of that lot back to the commencement point, further described as:

then south westerly to the northern bank of the Burdekin River at Longitude 145.708573˚ East; then generally north-westerly along that bank to a point opposite the intersection of that river and the western bank of Good Camp Creek at Latitude 18.502172˚ South; then westerly across to the western bank of Good Camp Creek and generally south westerly along the western banks of that creek to Latitude 18.519819˚ South; then generally south westerly through the following coordinate points:

then to the northern bank of Nobb Creek at Longitude 145.491776˚ East; then generally south westerly along the northern banks of that creek and the northern banks of Lucy Creek and generally north easterly along the eastern banks of Back Creek to Latitude 18.470696˚ South; then generally northerly through the following coordinate points:

then to the northern bank of the Burdekin River at Longitude 145.401979˚ East, then generally south westerly along the northern banks of that river bank back to the commencement point.

The eastern boundaries of the External Boundary Description, as described in this Part 3, are coincident with the western and southern boundaries of discontinued native title determination application QUD6029/99 Badjuballa People (QC99/37) filed in the Federal Court on 3 November 1999.

The southern boundaries of the External Boundary Description, as described in this Part 3, are coincident with the northern boundaries of the determination made by the Federal Court on 1 August 2012 in QUD85/05 Gugu Badhun People #2 (QC05/7).

Reference datum

Geographical coordinates are in decimal degrees referenced to the Geocentric Datum of Australia (GDA94).

Data reference and source

•    Land tenure information obtained from the Digital Cadastral Database, Department of Natural Resources and Mines (Queensland) (February 2013).

•    Watercourse boundaries and road boundaries are based where possible on cadastral boundaries obtained from the Digital Cadastral Database, Department of Natural Resources and Mines (Queensland) (February 2013) otherwise digitised from 100K Topographic Map sheets © Commonwealth of Australia and supplied by Geoimage Pty Ltd under licence from Geoscience Australia.

•    Native title determination application boundary data compiled by the Department of Natural Resources and Mines (Queensland) or sourced from the National Native Title Tribunal.

Use of coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Prepared by Client Mapping Services, Spatial Data & Mapping, Land & Spatial Information, Department of Natural Resources and Mines (Queensland) (April 2013).

B.    Map of Determination Area

Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA

For the avoidance of doubt, the areas described below are excluded from the Determination Area:

A.    The land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established, or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and/or s 23B(7) of the Native Title Act 1993 (Cth) and s 21 of the Native Title (Queensland) Act 1993 (Qld) applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth).

B.    On the basis that native title has been extinguished and is not claimed, the parties have agreed that the excluded areas include any land or waters on which any permanent improvement consisting of:

(i)    a homestead, house, shed or other building;

(ii)    an airstrip;

(iii)    a constructed dam or any other constructed stock watering point, bore, turkey nest, squatters’ tank or other water storage facility; or

(iv)    stock yards and trap yards,

has, at the date of the determination, been constructed (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under, and within the boundaries of the following pastoral leases:

    Pastoral Holding 22/593 comprising Lot 4 on Plan SP232791 and commonly known as Valley of Lagoons;

    Pastoral Holding 22/2944 comprising Lot 2944 on Plan PH1182 and commonly known as Yourka;

    Pastoral Holding 22/3825 comprising Lot 3825 on Plan PH1908 and commonly known as Kent (also known as Wombino);

    Pastoral Holding 22/5203 comprising Lot 5203 on Plan PH1063 and commonly known as Lamonds Lagoon;

    Pastoral Holding 24/5318 comprising Lot 2 on Plan WU33 and commonly known as Oak Hills;

    Preferential Pastoral Holding 22/4573 comprising Lot 4573 on Plan PH820 and commonly known as Yammanie;

    Preferential Pastoral Holding 22/4984 comprising Lot 2 on Plan K1241104 and Lot 3 on Plan K1241105 and commonly known as Glendhu (also known as New Farm);

    Term Lease 222061 comprising Lot 2 on Plan CWL3600 and commonly known as Glen Ruth;

    Term Lease 222107 comprising Lot 480 on Plan SP179213 and commonly known as Goshen;

    Term Lease 231453 comprising Lot 2 on Plan SP205224 and commonly known as Seaview (also known as Kilclooney); and

    Term Lease 233086 comprising Lot 537 on Plan SP132224 and commonly known as Meadowbank (also known as Kinrara).

Schedule 3 — NATIVE TITLE HOLDERS

1.    The native title holders are the Warrungnu People. The Warrungnu People are the biological or adopted descendants of one or more of the following people:

(a)    Wombino;

(b)    Lena, sister of Wombino and wife of Old Billy Morganson;

(c)    Alf Palmer; or

(d)    Billy Simmonds.

Schedule 4 — OTHER INTERESTS IN THE DETERMINATION AREA

The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:

1.    The rights and interests of the parties under the following agreements:

(a)    Reginald Joseph Morganson, Danny Hooligan and Walter Blohm on their own behalf and on behalf of the Warrungnu People, the Goondaloo Aboriginal Corporation ICN 7140, the Wet Tropics Management Authority, the State of Queensland, and the Goondaloo Aboriginal Corporation RNTBC ICN 7140 as parties to the Warrungnu protected areas indigenous land use agreement (body corporate agreement), which was authorised by the native title claim group on 19 April 2013 and executed by the Applicant on 19 April 2013, the Goondaloo Aboriginal Corporation ICN 7140 on 19 April 2013, the Wet Tropics Management Authority on 23 April 2013, and the State of Queensland on 13 May 2013 and 31 May 2013, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(b)    Doris Fred and Reginald Joseph Morganson on their own behalf and on behalf of the Warrungnu People #2 and the Tablelands Regional Council as parties to the indigenous land use agreement (area agreement) dated 3 April 2012 and registered on 24 January 2013;

(c)    Doris Fred and Reginald Joseph Morganson on their own behalf and on behalf of the Warrungnu People #2 and Ergon Energy Corporation Limited ACN 087 646 062 as parties to the indigenous land use agreement registered on 20 December 2012;

(d)    the Warrungnu People/Glen Ruth indigenous land use agreement;

(e)    the Warrungnu People/Glendhu (also known as New Farm) indigenous land use agreement;

(f)    the Warrungnu People/Goshen indigenous land use agreement;

(g)    the Warrungnu People/Kent (also known as Wombino) indigenous land use agreement;

(h)    the Warrungnu People/Lamonds Lagoon indigenous land use agreement;

(i)    the Warrungnu People/Meadowbank (also known as Kinrara) indigenous land use agreement;

(j)    the Warrungnu People/Oak Hills indigenous land use agreement;

(k)    the Warrungnu People/Yammanie indigenous land use agreement; and

(l)    the Warrungnu People/Yourka indigenous land use agreement.

2.    The rights and interests of Telstra Corporation Limited ACN 051 775 556:

(a)    as the owner or operator of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c)    for its employees, agents or contractors to access its telecommunication facilities; and

(d)    under any licences, access agreements or easements relating to its telecommunications facilities in the Determination Area.

3.    The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062:

(a)    as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;

(b)    as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);

(c)    created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:

(i)    rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made;

(ii)    rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and

(iii)    to inspect, maintain and manage any Works in the Determination Area.

4.    The rights and interests of the Tablelands Regional Council for that part of the Determination Area within its Local Government Area, including:

(a)    as the owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of this determination;

(b)    the right to enter the Determination Area and exercise its powers and responsibilities under Local Government Acts; and

(c)    under any lease, licence, access agreement, easement, reserve or other interest in the Determination Area.

5.    The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under that Act.

6.    The rights and interests of members of the public arising under the common law, including but not limited to the public right to fish.

7.    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; and

(d)    areas that were public places at the end of 31 December 1993.

8.    Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

(b)    existing by reason of the force and operation of the Laws of the State or the Commonwealth.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    The application that is the subject of these proceedings, QUD 111 of 2004, “Warrungnu People #2”, is for the determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the land described in Schedule 1 to the proposed determination.

2    The applicant seeks a determination of native title under s 61 of the Act on behalf of the Warrungnu People over various lands and waters in the Herbert/Burdekin region that cover a total area of approximately 2,644 sq km.

3    The respondents to the Application are the State of Queensland, Tablelands Regional Council, Ergon Energy Corporation Limited, together with various pastoral holders.

4    The properties over which the proposed consent determination will be granted are described in more detail in the map in Schedule 1 to the determination.

One of the Commonwealth Parliament’s objectives in respect of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in s 87 of the Act by the Native Title Amendment Act 2009 (Cth).

5    Like many such claims, this claim has been long in its gestation. I made observations last year in Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800 and Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 that native title claims which linger unresolved on a court list are an affront to our system of justice. I related in those cases how Parliament’s objective of consensual resolutions had been met. The statements which I then made are just as applicable to this case. The achievement of Parliament’s objective would not have been possible without much hard and dedicated work by experienced legal advisers, the responsible actions of the parties guided by their advisers and, especially latterly, intensive case management, particularly by the Court’s registrars. I commend the parties and the legal practitioners involved in cases being heard today for the work latterly undertaken in bringing them to final, consensual resolution.

6    In the aftermath of Wik Peoples v Queensland (1996) 187 CLR 1, the Executive Government of the Commonwealth made provision for legal assistance to be provided to pastoralists in relation to native title claims. Over the time during which I have been responsible for the management of the list of native title cases in this region, and as I have stated in other determinations, I have directly observed how, in combination with responsible legal representation of applicants, via the North Queensland Land Council, of the State, via the Crown Solicitor and of other respondents, this legal assistance to pastoralists has repeatedly and beneficially contributed to the administration of justice and thus to Parliament’s goal of national reconciliation in this important area of the Court’s jurisdiction. This legal assistance to pastoralists was terminated with effect at the end of 2012 by the then Commonwealth Executive Government. Such value judgments are for the Executive Government of the day to make. What I can say again, and have in earlier determinations stated, based on direct experience, is that the addressing of the hitherto “unacceptably long time” for the resolution of native title cases and the recent experience of “faster and better claim resolution” to which the then Attorney General made reference (Echoes of Mabo: AIATSIS Native Title Conference, 6 June 2012, Speech by the Honourable Nicola Roxon MP, Attorney-General, http://www.attorneygeneral.gov.au/Speeches/Pages/2012/Second%20 Quarter/6-June-2012---Echoes-of-Mabo---AIATSIS-Native-Title-Conference.aspx Accessed 7 December 2012) is best achieved by a combination of responsible legal representation of all interested parties and intensive case management and proactive, targeted use of alternative dispute resolution where appropriate by the judges and registrars of this Court. As I noted this year in Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 at [4]:

[T]o my direct observation in court in respect of the regions of the State for which I have had case management responsibility, the collective representation of pastoral respondents enabled by that scheme greatly facilitated the responsible, consensual resolution of native title claims and removed much of the angst such claims might otherwise have occasioned such respondents.

7    In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made in King v Northern Territory of Australia [2011] FCA 582 (King) per Mansfield J. His Honour made a number of observations about the preamble to the Act. I am in complete agreement not only with the substance of his Honour’s observations in King but also with the manner in which he expressed them. They are exactly apposite in the present proceedings also. As I observed in Muluridji, I propose therefore to adopt them as my own in these reasons for judgment without further attribution.

8    The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications have always been the traditional owners of the land. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement.

9    The applicant has filed the following documents principally relevant to the consent determination in QUD 111 of 2004:

(a)    Affidavit of Mr Jennifer Jude sworn and field on 31 May 2013, exhibiting:

(i)    The Goondaloo Aboriginal Corporation Rules;

(ii)    Extracts of directors from the Officer of the Registrar of Indigenous Corporations; and

(iii)    Nomination and consent form of the Prescribed Body Corporate.

(b)    Affidavit of Ms Jennifer Jude affirmed and filed on 7 August 2013, exhibiting:

(i)    Dr James Weiner, ‘Warrungnu Native Title Application Anthropological Overview’, March 2004 (Weiner Report);

(ii)    Dr John Burton, ‘Supplementary Report – Warrungnu Native Title Application (writing for the purpose of assisting in the Native Title Application of the Warrungnu People)’, 30 September 2009 (Burton Report);

(iii)    Dr James Weiner, ‘Warrungnu Native Title: Supplementary Report’, June 2011 (Weiner Supplementary Report); and

(iv)    Dr James Weiner, ‘Warrungnu Native Title: Supplementary Report No 2: Warrungnu in its Regional Settings, June 2013 (Weiner Supplementary Report No 2).

(c)    Affidavit of Ms Jennifer Jude affirmed and filed on 22 August 2013, exhibiting:

(i)    Affidavit of Doris Fred affirmed 25 June 2004;

(ii)    Affidavit of Reginald Joseph Morganson affirmed 25 June 2004;

(iii)    Affidavit of Isaac Benjamin Hooligan affirmed 17 June 2011;

(iv)    Affidavit of Charges Robert Morganson affirmed 26 July 2011;

(v)    Affidavit of Reginald Joseph Morganson affirmed 27 July 2011;

(vi)    Affidavit of Bill Morganson affirmed 28 July 2011;

(vii)    Affidavit of Reginald Joseph Morganson affirmed 19 April 2013;

(viii)    Affidavit of Shane Douglas Freeman affirmed 27 June 2013;

(ix)    Affidavit of Gemma Anna Sanford affirmed 9 July 2013;

(x)    Affidavit of Josephine Simpson nee Fred affirmed 23 July 2013;

(xi)    Affidavit of Jennifer Hooligan affirmed 23 July 2013; and

(xii)    Affidavit of Brian James Le Grande affirmed 23 July 2013.

(d)    Outline of Submissions in support of the proposed consent determination filed on 22 August 2013;

(e)    Agreement under s 87 of the Act and draft consent determination orders, filed by the State of Queensland on 23 August 2013; and

(f)    Submissions satisfying s 57 of the Act filed on 27 August 2013.

SECTION 87 OF THE ACT

10    Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where:

(a)    The period specified in the notice given under s 66 of the Act has ended (s 87(1));

(b)    There is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i));

(c)    The terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b));

(d)    The Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and

(e)    Having satisfied the criteria relevantly detailed, the Court considers the making of orders as it appears to the Court to be appropriate to do so pursuant to s 87(1A) of the Act. The Court may make a determination in accordance with s 87(2), as is relevant to these proceedings.

11    The focus of the Court in considering whether the orders sought are appropriate under s 87(1) and s 87(2) is on the making of the agreement by the parties. In Muluridji I cited observations of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474. Such remarks are apt to be adopted in this case. His Honour stated:

[36]    … The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.

[37]    In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.

12    As such, the Court is not required to make its own inquiry of the merits of the applicant’s claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. The Court may consider such evidence to determine whether the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30].

13    In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated:

[38]     … State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

SECTION 94A OF THE ACT

14    Section 94A of the Act requires that a native title determination order must satisfy the requirements of s 225 of the Act. Section 225 provides:

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.

[emphasis in original]

15    Section 223(1) of the Act defines ‘native title’ and ‘native title rights and interests’ as:

(1)    … 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 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.

16    In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ (with McHugh J agreeing) stated the relevant principles with respect to s 223 of the Act, at [46] to [55] and [80] to [83]:

(a)    A traditional law or custom which is the source of native title rights and interests is one which has been passed from generation to generation of a society, usually by word of mouth and common practice.

(b)    The origins of the law or custom from which native title rights and interests stem must be found in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of sovereignty by the British Crown – it is only those rules that are “traditional” laws and customs.

(c)    That normative system must have a continuous existence and vitality since sovereignty.

(d)    If that society ceases to exist as a group which acknowledges and observes those pre-sovereignty laws and customs, those laws and customs cease to have continued existence and vitality.

(e)    Only native title rights or interests that existed at the time of the change in sovereignty will be recognised. However, some change to, or adaptation of, traditional laws or customs or some interruption in the enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim.

(f)    In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional laws and customs at times earlier than those described in the evidence.

17    Further, there is authority of this Court, exercising appellate jurisdiction, which lends itself to a determinative conclusion that physical presence is not a necessary requirement for continuing connection. See, for example, Moses v State of Western Australia [2007] FCAFC 78 at [306] per Moore, North and Mansfield JJ.

APpLICATION OF sECTION 223 and section 225 to THE WARRUNGNU society

18    The Burton Report evidences there were indigenous people in the Herbert/Burdekin region, the area now claimed as Warrungnu country, at the time of first contact and in the pre-sovereignty period.

19    The applicant and those Aboriginal people they represent collectively identify themselves as ‘Warrungnu’. The name Warrungnu (or its variants) was identified as a language name and a name for the people speaking that language in the area and that it is a similar language to the language spoken by neighbouring groups (Burton Report, p 17, paras 80-81). Although sharing much in common with their neighbours, in particular the Warrgamay, Girramay, Biyay and Nyawaygi Peoples, the Warrungnu are distinguishable from other Aboriginal peoples and other Aboriginal groups in the region.

20    Although archaeological records furnished in support of occupation in the Warrungnu region are limited, the evidence establishes that Aboriginal people occupied and exploited the area in the pre-sovereignty period. Evidence of prior occupation is found in, among other things, rock art sites and campsites (Weiner Report, p 18, para 2.1; p 26, para 3.3.5).

21    The earliest known reference to the identity of Aboriginal people in the claimed area is an account of explorer Ludwig Leichhardt on 3 May 1845 who was then ascending the Burdekin River with an exploration party (Burton Report, p 1, paras 6-7). The first recorded substantive encounter with the Aboriginal people of the claimed area took place three days later at Leichhardt’s camp about ten (10) kilometres southwest of the present-day Valley of Lagoons station. The Burton Report (p 4, para 18) summarises Leichhardt’s information as first, depicting an Aboriginal society in an essentially undisturbed state and second, locating such a society in the Warrungnu claim area.

22    Whilst accounts from the late 19th Century depict frontier violence in the claim area between Warrungnu People and colonial settlers (Burton Report, pp 8-11), the anthropological evidence establishes that the Warrungnu People maintained their lifestyle, knowledge and culture including a four (4) section marriage system which allowed Warrungnu people to determine correct marriages between individuals from different groups (Weiner Report, p 8, para 1.4.1).

23    It is also clear on the evidence to hand that the use of the Warrungnu language and the transfer of Warrungnu cultural knowledge have continued throughout the 20th Century. The Court is asked to infer that the Warrungnu people today are descended from the community of people who spoke the Warrungnu language and used and occupied Warrungnu country prior to 1788. This is supported by historical material which locates the community of the Warrungnu people in the early days of European contact, in this case from the 1840s, and establishes the basis for the finding that they are descended from a pre-sovereignty community of Warrungnu ancestors.

24    The material also provides that the Warrungnu people have an identity and a connection to the land through the application of normative rules associated with dreaming stories and significant places. The evidence establishes that there are a number of landscape features on Warrungnu land associated with story-telling, traditional observance of which is followed today (Burton Report, p 70, para 340). Through this connection with the land, the Warrungnu people, as an organised society, possessed native title rights and interests in accordance with their observed and acknowledged traditional laws and customs. The material supports the intergenerational transfer of those laws and customs and support for the inference that they, and the rights and interests possessed by them, originated in a pre-sovereignty Warrungnu society.

25    It is also apparent that while there has been some adaptation of laws and customs as a result of sustained European settlement, those changes have not affected the laws and customs of the Warrungnu people to the extent where those laws and customs are no longer observed.

26    Accordingly, it is appropriate to make the proposed orders which recognise:

(a)    That the claim group comprises a society united in and by their acknowledgement and observance of a body of accepted traditional laws and customs;

(b)    That the present day body of accepted laws and customs of the society in essence is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances;

(c)    That the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs; and

(d)    That the claim group still possesses rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.

THE APPLICATION OF SECTION 87 to the Warrungnu people claim

27    The requirements of s 87 of the Act have been satisfied in the present case. In particular:

(a)    The period specified in the notice given under s 66 ended on 20 December 2005 (s 87(1));

(b)    The parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i));

(c)    The parties have recorded their agreement in a short minute of consent (s 87(1)(b));

(d)    An order in terms of or consistent with the short minute of consent would be within the Court’s power (s 87(1)(c)) because:

(i)    The Application is valid and was made in accordance with s 61 of the Act; and

(ii)    The Application is for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a)).

The short minute complies with s 94A and s 225 of the Act (s 87(1)(c)); and

(e)    It is appropriate that the Court make the orders sought because:

(i)    All parties are legally represented;

(ii)    It is consistent with objects in the Act that issues and disputes concerning native title are resolved by mediation;

(iii)    The State of Queensland has taken a real interest in negotiating the consent determination. In participating in these negotiations, the State of Queensland, acting on behalf of the general community, having had regard to the Act’s requirements and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances;

(iv)    The connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determination;

(v)    The requirements of ss 56, 94A and 225 of the Act are satisfied; and

(vi)    The proposed determination is unambiguous and certain as to the rights declared.

satisfying section 57 of the act

28    Under s 55 of the Act, the Court is required, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by s 56 and s 57 of the Act. They respectively relate to holding the native title on trust or otherwise and if not held on trust, the non-trust functions of the prescribed body corporate.

29    As to the proposed determination, Ms Jude has deposed in her affidavit, affirmed and filed on 31 May 2013, the native title is not to be held on trust. It provides for an Aboriginal corporation, the Goondaloo Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. That body corporate was registered on 10 November 2008 pursuant to the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth). It will perform the functions mentioned in s 57(3) of the Act.

30    The Court notes that Ms Jude has exhibited to her affidavit, affirmed and filed on 31 May 2013, a Notice of Nomination and Consent of the Prescribed Body Corporate, which satisfies the requirements of s 57(2) of the Act. It is noted that the ICN of the Goondaloo Aboriginal Corporation is in fact ICN 7140, not ICN 7858 as stated in error at paragraph 2 of the Nomination and Consent.

31    The Goondaloo Aboriginal Corporation, satisfies the requirements of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) because:

(a)    it is an Aboriginal and Torres Strait Islander corporation: reg 4(1));

(b)    its purpose, as set out in its Rules of the Corporation, satisfy reg 4(2)(b);

(c)    the eligibility requirements of the Rules of the Corporation and the definition of Warrungnu People in rule 3, operate to ensure that all members of the corporation at the time of the determination are included or proposed to be included in the determination as persons who have native title rights and interests in relation to the determination area: reg 4(2)(b).

32    Furthermore, the Indigeneity requirement of s 29.5(a) of the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth) is met because all members of the Goondaloo Aboriginal Corporation are required to be Aboriginal or Torres Strait Islander descended from four apical ancestors of the Warrungnu People.

33    Finally, and at the risk of repetition, it needs to be understood that agreements of the kind that have brought about today’s hearing and determinations do not just happen. They involve co-operation by all of the parties in the administration of justice, careful attention by them and their advisers to the requirements of the Act in relation to the proof of native title, related effort in the gathering of relevant evidence and the ready making of concessions as to whether on the evidence native title can be proved. They also involve the regular review by the Court at regional directions hearings, and in the intervals in between by the Court’s registrars, to ensure that an application is both prosecuted with due diligence by an applicant and not unreasonably delayed by a respondent in its progress towards a hearing like today or, if needs be, a contested hearing. Ensuring that is important in any litigation but is especially so in a proceeding under the Act which serves a wider public interest recognised in the preamble and which, through the allocation of judicial and other court resources and via the provision of various forms of legal aid, involves a considerable investment of public money.

34    For the reasons given, the Determinations are now made.

Associate:

Dated:    20 September 2013