FEDERAL COURT OF AUSTRALIA

Hill on behalf of the Yirendali People v State of Queensland [2017] FCA 273

ORDERS

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 the Schedule, and depicted in the map attached to the Schedule. To the extent of any inconsistency between the written description and the map, the written description prevails.

4.    Native title does not exist in relation to the Determination Area.

DEFINITIONS AND INTERPRETATION

5.    In this determination “land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth).

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).

SCHEDULE

A.    Description of Determination Area

The Determination Area comprises all of the land and waters within the external boundary described below, and depicted on the map.

Commencing at a point at longitude 143.295339 degrees east latitude 20.580364 degrees south (ADG66), then in a generally north-north-easterly direction through the following points (ADG66):

then in a north-easterly direction to the point where longitude 143.469863 degrees east intersects the centre of the main channel of the Stawell River (Cambridge Creek), then in a generally east-north-easterly direction along the centre of the main channel of the Stawell River to a point where longitude 143.845011 degrees east intersects the centre of the main channel of the said river, then easterly to the mid-point of the western boundary of the Stawell River reserve adjacent to the southern boundary of Lot 3 on Plan CP846344, then in an easterly and north-easterly direction along the centreline of the Stawell River reserve adjacent to the southern boundary of Lot 3 on Plan CP846344 to the intersection of the centreline of the aforementioned reserve with the northerly prolongation of the south-western boundary of Lot 2 on Plan CHL 11, then in a generally easterly direction through the following points:

then east-south-easterly to the point where longitude 144.125455 degrees east intersects the centre of the main channel of Pine Tree Creek, then in a generally north-easterly direction along the centre of the main channel of Pine Tree Creek to the point where longitude 144.206719 degrees east intersects the centre of the main channel of Pine Tree Creek, then in a north-easterly, south-easterly, southerly and westerly direction through the following points:

then southerly to a point on the southern boundary of the former Central Queensland Land Council Aboriginal Corporation (CQLCAC) Native Title Representative Body (NTRB) region (being a point on the southern boundary of the Flinders Shire local government area) at approximately longitude 145.384915 degrees east latitude 21.843882 degrees south then in a generally westerly direction along part of the southern boundary of the former CQLCAC NTRB region (being also along part of the southern boundary of the Flinders Shire local government area) generally through the following points:

then westerly to a point on the southern boundary of the former CQLCAC NTRB region (being a point on the southern boundary of the Flinders Shire local government area) at approximately longitude 143.280298 degrees east latitude 21.316381 degrees south then in a north-north-westerly direction through the following points:

then north-easterly to the point of commencement.

Co-ordinate System and Datum:

Geographic co-ordinates are referenced to Australian Geodetic Datum 1966 (AGD66) and in decimal degrees.

Cadastral information in Central Queensland Land Council Aboriginal Corporation Native Title Representative Body region is based on 1998 DCDC data (Australian Map Grid (AGD84)) used under licence from the State of Queensland (Department of Natural Resources and Mines).

Cadastral information in Gurang Land Council Native Title Representative Body region is based on 1999 DCDB data used under licence from the State of Queensland (Department of Natural Resources and Mines).

Topographic data is based on 1997 1:250,000 topographic data (Australian Geodetic Datum 1966) used under licence from the Commonwealth of Australia (Geoscience Australia).

Use of Co-ordinates:

Where co-ordinates are used within the description to represent cadastral or topographic boundaries or the intersection with such, they are intended as a guide only. As the custodians of cadastral and topographic data continuously re-calculate 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.

B.    Map of Determination Area

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

REASONS FOR JUDGMENT

REEVES J:

1    This is a somewhat unusual application under s 87 of the Native Title Act 1993 (Cth) (the NTA). It seeks what is commonly described as a consent determination of native title. It is unusual for at least two reasons. First, for its long and troubled history and, secondly, because it is directed to achieving a “non-native title outcome”. That is to say, a consent determination that native title does not exist in the claim area. This form of determination is commonly described as a negative determination of native title. Since its long and troubled history explains why this outcome is being proposed, it is appropriate to begin by describing what that history is.

2    The application was made by James Hill, Martina Jacobs and Jeffrey Lammermoor (as the authorised applicant under s 61(2)) on behalf of the Yirendali People. It was filed on 13 December 2006 and registered by the National Native Title Tribunal on 17 August 2007. The notification period under s 66 of the NTA expired on 6 June 2008. It relates to a large area of land in western Queensland centred around Hughenden and includes parts of the areas of the Charters Towers Regional Council and the Flinders and Richmond Shire Councils.

3    The parties that remain as respondents to the application are the State of Queensland, the Commonwealth of Australia, the Charters Towers Regional Council, the Flinders and Richmond Shire Councils, Ergon Energy and Telstra Corporation together with a significant number of pastoralists and two mining companies.

4    Since 2010, the proceeding has been closely case management by Logan J and the Court’s National Native Title Registrar, Ms Fewings. Difficulties arose in that process almost from the outset. Logan J recorded some of those difficulties in one of his earlier case management rulings (Hill on behalf of the Yirendali People v Queensland [2011] FCA 472 at [6]–[9]). They included a foreshadowed application to discontinue the application, which was not pursued, followed by a notice to show cause why the application should not be dismissed for want of prosecution, which did not result in dismissal.

5    The application appears to have survived these initial difficulties because, by mid-2014, the applicant had filed two connection reports (an initial and supplementary one) by Dr Andrew Sneddon, an anthropologist; a report by Ms Hilda Maclean, a genealogist; and seven affidavits made by various members of the Yirendali claim group.

6    On 13 June 2014, Logan J ordered that a number of separate questions should be determined pursuant to r 30.01 of the Federal Court Rules 2011 (Cth). They were:

a)    Does native title exist in relation to any and what land and waters of the claim area?

b)    In relation to that part of the claim area where the answer to (a) above is in the affirmative:

(i)    Who are the persons, or each group of persons, holding the common or group rights comprising native title?

(ii)    What is the nature and extent of the native title rights and interests?

7    Later in 2014, the State advised the applicant that it did not accept that the Yirendali claim group could establish the necessary connection with the claim area under the relevant provisions of the NTA. As a consequence, the separate questions above were set down for trial over a three week period commencing on 29 June 2015.

8    In March 2015, the applicant sought leave to discontinue the application on the ground that it did not have the funds necessary to conduct the trial of the separate questions. That application was dismissed by Logan J (see Hill on behalf of the Yirendali People v Queensland [2015] FCA 300).

9    Then, in May 2015, the applicant informed the Court that it would not be calling any evidence at the trial of the separate question. At about the same time, the State made an offer to the applicant to enter into negotiations for the settlement of the matter. As a result of these developments, the trial of the separate questions was vacated by Logan J (see Hill on behalf of the Yirendali People v Queensland (No 2) [2015] FCA 538).

10    On 29 June 2015, Logan J conducted a case management hearing in the application in order to determine its future. The main outcome of that hearing was the following order (Hill on behalf of the Yirendali People v Queensland (No 3) [2015] FCA 777):

6.    In the event that, within 18 months of the date of this order:

(a)    An indigenous land use agreement is not registered upon the Register of Indigenous Land Use Agreements providing for the surrender of native title in respect of the whole of the claim area; and

(b)    An agreement made pursuant to s87 of the Native Title Act 1993 (Cth) annexing a draft determination to the effect that native title does not exist in the claim area is not signed by each of the parties and filed,

a trial of the separate question pursuant to order 1 of the orders made on 13 June 2014 be set down for a hearing on a date to be fixed for a period of 2 days.

11    Thereafter, as anticipated by Order 6 above, the applicant and the State held negotiations directed to settling the terms of an Indigenous Land Use Agreement (ILUA) to resolve the matter. Those negotiations included a private mediation that took place in February 2016 before the Honourable Stanley Jones AO QC. At that mediation, an “in principle” agreement was reached as to the terms of an ILUA.

12    That ILUA was subsequently authorised by the Yirendali claim group, executed and lodged with the National Native Title Tribunal (the Tribunal) for registration. On 2 December 2016, the ILUA was duly entered on the Register of Indigenous Land Use Agreements maintained by the Tribunal.

13    The ILUA provided for the surrender of native title in relation to the whole of the claim area, in exchange for certain benefits including land exchange and revenue sharing. It followed that condition (a) of Order 6 (above) was satisfied.

14    On 20 December 2016, the applicant filed with the Court an agreement under s 87 of the NTA (the s 87 agreement) duly executed by all the parties to the proceeding, together with a set of submissions in support of its application for a consent determination in the terms of that agreement.

15    This long and troubled history of this application is particularly relevant to one of the criteria about which this Court has to be satisfied before it makes a determination under s 87 of the NTA. That is, whether, under s 87(1A), it appears to the Court to be “appropriate” to make an order. In this case, the order is to be made under s 87(2).

16    In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) at [5]–[13], I canvassed the authorities that identified the factors to which the Court will routinely have regard in determining this question of “appropriateness”. Those factors included:

(a)    the objects of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation [Nelson at [7]];

(b)    whether there is an agreement, and whether it was freely entered into on an informed basis [Nelson at [8] and [9]];

(c)    whether the parties have independent and competent legal representation [Nelson at [14]];

(d)    whether the terms of the proposed order are unambiguous and clear [Nelson at [14]];

(e)    whether the agreement has been preceded by a mediation process [Nelson at [14]].

17    Having regard to the history set out above, and particularly the events since Logan J made Order 6 on 29 June 2015, I consider the sentiments expressed in factors (a), (b) and (e) above have clearly been met. Further, since all the parties, particularly the applicant and the State, have had independent and competent legal representation throughout, I consider factor (c) has also been met. Finally, from the terms of the s 87 agreement filed with the Court, it is apparent that it is unambiguous and clear in its terms and therefore factor (d) has also been met.

18    However, as I have already mentioned above, this matter raises another consideration that did not arise in Nelson. That is, whether it is appropriate, in the circumstances, to make a determination that native title does not exist in the claim area. The discretionary power of the Court to make such a negative determination of native title was authoritatively affirmed in CG v Western Australia (2016) 240 FCR 466; [2016] FCAFC 67 (Badimia).

19    The discretionary considerations that were taken into account by the primary judge in Badimia were as follows :

(a)    the serious consequences for the claimant group ([2015] FCA 507 at [79]);

(b)    the fact that a full and complete trial had considered the relevant connection issues in the claim area ([2015] FCA 507 at [79]);

(c)    that following the lodgement of the claimant application, no other indigenous persons or groups had come forward to challenge the claimant’s alleged interests ([2015] FCA 507 at [80]);

(d)    the fact that the claim had been formulated with the assistance of the relevant native title representative body, with the advice and representation of experienced solicitors and counsel and relying upon the evidence of an experienced anthropologist (see [2015] FCA 507 at [80]); and

(e)    that it was artificial to suggest that a new claim group could exist comprising only the descendants of the claimants who had been identified by the Court ([2015] FCA 507 at [81] and [82]).

20    The consideration in (a) above shows that the circumstances of the negative determination in Badimia were very different to those of the present case. Nonetheless, I consider these considerations provide some assistance in identifying the factors I should take into account in this matter. Having regard to them, I consider that they include the following matters.

21    As I have already mentioned above (see at [17]), throughout this proceeding all the parties have been represented by competent legal advisers. This reflects the consideration in Badimia at [19(d)] above.

22    As in Badimia, following the notification of this application under s 66 of the NTA, no other indigenous persons or groups came forward to challenge the Yirendali claim groups alleged interests in the claim area. This reflects the consideration in Badimia at [19(c)] above.

23    Prior to the trial that was fixed for the separate questions in June 2015, the parties exchanged the experts’ reports upon which they wished to rely. The applicant’s experts’ reports are already identified at [5] above. In May 2015, the State filed an expert report by Professor Sandra Pannell, an anthropologist. Professor Pannell’s report is comprehensive and detailed. In it she considered Dr Sneddon’s reports and the seven affidavits made by various members of the Yirendali claim group (see at [5] above). The final few sentences of her report provide some indication of the conclusions she came to about whether or not native title existed in the claim area. She said:

it is evident from the available material that the descendants of these claim group antecedents have not continued to acknowledge and observe the traditional laws and customs of their Dalleburra antecedents, in a substantially uninterrupted manner, since effective sovereignty. Moreover … members of the Yirendali claim group have not, either individually or as a group, continued to acknowledge and observe the pre-sovereignty laws and customs of Yirandhali people, as reported in the written record.

24    This conclusion has obviously informed the approach the State has taken to negotiate a non-native title outcome to the Yirendali applications. That aside, it is apparent that both the applicant and the State obtained the advice of experts and, in particular, experienced anthropologists in putting forward this application under s 87. This reflects the consideration in [19(d)].

25    Far from there being a contest about the existence of native title in the claim area, as there was in Badimia, in this matter the applicant and the State have now agreed to, and had registered, an ILUA under which whatever native title exists in the whole of the claim area is surrendered. This agreement is plainly a highly relevant factor in exercising my discretion to make this negative determination. In this respect, it is worth recording the observations of Branson J in Kelly on behalf of the Byron Bay Bundjalung People v New South Wales Aboriginal Land Council [2001] FCA 1479. That matter involved an application under s 87 of the NTA to make a determination that native title did not exist in circumstances very similar to those of the present case. Specifically, the applicant had entered into an ILUA with the State to surrender to it any native title rights and interests that it may hold in the land in question. As to the significance of that ILUA, her Honour said (at [19]):

Section 24EA of the [NTA] gives contractual effect to an agreement entered on the Register of Indigenous Land Use Agreements. It also provides that all persons holding native title in relation to the land in the area covered by the agreement, who are not already parties to the agreement, are bound by the agreement in the same way as the registered native title bodies corporate or the native title group, as the case may be. In the circumstances I am satisfied that it is within the power of the Court now to order that native title does not exist in the land the subject of this proceeding. That is because the State Minister has, pursuant to a valid and binding agreement, accepted the surrender of any native title that may have previously existed in the land.

26    Having regard to all these matters, I am satisfied it is appropriate to make the determination orders that have been sought by the parties in the s 87 agreement.

27    However, there is a number of other requirements in s 87 of the NTA that must be met before a determination can be made. The first three of those requirements, and the evidence that shows that the parties have met them, are as follows:

(a)    the notice period under s 66 of the NTA must have ended before the written agreement of the parties is filed with the Court: s 87(1). As I have already noted above, this notification period ceased on 6 June 2008, well before the s 87 agreement was filed with the Court on 20 December 2016;

(b)    the agreement of the parties must relate to the whole of the proceeding, part of the proceeding, or a matter arising out of the proceeding: s 87(1)(a). As the proposed orders in the s 87 agreement relate to the whole of the proceeding, this requirement, too, has been met; and

(c)    s 87(1)(b) of the NTA requires that the agreement must be reduced to writing, signed by the parties, and filed with the Court. The s 87 agreement filed with the Court demonstrates that each of these requirements has also been met.

28    The next requirement is that the Court must be satisfied that the proposed orders, or orders consistent with them, would be within the power of the Court (s 87(1)(c)). An order will be within the power of the Court if it complies with the various provisions of the NTA including ss 94A and 225. Section 94A requires that:

An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).

29    This provision obviously requires attention to the matters mentioned in s 225 of the NTA. That section 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 omitted)

30    It can be seen that the determination only needs to include the matters described in s 225(a) to (e) if native title does exist in the determination area. Those matters obviously cannot be included in a determination that native title does not exist. For similar reasons, the provisions of Division 6, Part 2 of the NTA relating to prescribed bodies corporate do not apply to the present determination (see s 55(b)).

31    Finally, none of the parties to the proceeding has elected to file an agreed statement of facts so I do not need to concern myself with the provisions of ss 87(8) to (11) inclusive.

32    For these reasons, I am therefore satisfied that all of the requirements in s 87 of the NTA have been met and it is appropriate to make a determination that native title does not exist in the whole of the claim area, without holding a hearing.

Associate:    

Dated:    20 March 2017

SCHEDULE OF PARTIES