FEDERAL COURT OF AUSTRALIA

Doctor on behalf of the Bigambul People v State of Queensland [2017] FCA 716

ORDERS

THE COURT NOTES THAT:

A.    The Applicant has brought Native Title Determination Application QUD 101 of 2009 (“the Application”) which relates to an area which includes the land and waters the subject of the proposed determination.

B.    On 18 October 2016, the Application was split into Part A and Part B, to remove the areas which were affected in part by the same issues considered in Doyle and others on behalf of the Iman People #2 v State of Queensland [2016] FCA 13, whilst the Applicant awaited the outcome of an appeal in QUD 103 of 2016.

C.    Part A of the Application proceeded to a consent determination hearing on 1 December 2016.

D.    On 24 February 2017, judgment was delivered in QUD 103 of 2016 which held that native title was validly extinguished over the affected areas.

E.    The parties to the Application have considered whether s 47, 47A or 47B of the Native Title Act 1993 (Cth) applies to any of the remaining areas of land or waters covered by the Application and are agreed that those sections do not apply to the areas the subject of the proposed determination.

F.    The parties to the Application that hold an interest in the remainder of the land or waters covered by the Application not affected by the issues considered on appeal in QUD 103 of 2016 have asked the Court to make a consent order for a determination of native title over that area.

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 87A 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 on the map attached to Schedule 1. To the extent of any inconsistency between the written description and the map, the written description prevails.

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

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

6.    Subject to paragraphs 7, 8 and 9 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 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 on the area;

(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)    be buried and bury native title holders within the area;

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

(i)    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;

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

(k)    be accompanied onto the area by certain non-Bigambul people, being people required for the performance of ceremonies and cultural activities.

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

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

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

8.    The native title rights and interests referred to in paragraph 6 do not confer possession, occupation, use or enjoyment of the Determination Area to the exclusion of all others.

9.    There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

10.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) as they exist at the date of this Determination are set out in Schedule 4 (“Other Interests”).

11.    The relationship between the native title rights and interests described in paragraph 6 and the Other Interests described in Schedule 4 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;

(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;

(d)    without limiting the operation of paragraphs 11(a) to (c) above, before the native title rights and interests (referred to in paragraph 6 above) are exercised on state forest land over which a term lease for grazing purposes has been granted, the native title holders must contact the lessee of the grazing lease, provided their contact details have been provided to the Bigambul Native Title Aboriginal Corporation ICN No. 8479, and discuss any safety issues associated with the proposed exercise of native title rights and interests and make reasonable efforts to agree on the route of access.

DEFINITIONS AND INTERPRETATION

12.    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 Act” has the same meaning as in the Local Government Act 2009 (Qld);

“Local Government Area” has the same meaning as 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, rock or ochre 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 (except ochre taken in accordance with the traditional laws and customs of the native title holders) 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);

“Reserves” means reserves that are dedicated or taken to be reserves 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:

13.    The native title is held in trust.

14.    The Bigambul Native Title Aboriginal Corporation ICN No. 8479, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

SCHEDULE 1 – DETERMINATION AREA

Description of Determination Area

The Determination Area comprises all of the land and waters described in Part 1 below, to the extent that they are within the external boundary described in Part 2 below, and depicted on the determination map, excluding the areas described in Schedule 2.

Part 1 –– Non-Exclusive Areas

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

Part 2 –– External Boundary Description

This Determination Area covers all lands and waters within the external boundary described below:

Commencing at the intersection of the New South Wales – Queensland Border and the southern boundary of the Macintyre Brook watershed, north westerly of the Township of Texas, and extending generally westerly along that State Border to Longitude 149.676692° east; then generally north westerly passing through the following coordinate points.

Then north westerly to a point approximately 38 kilometres southeast of the Township of St George at Longitude 148.919302° east and Latitude 28.204870° south; then generally north easterly passing through the following coordinate points.

Then north easterly to the centreline of Moonie River at Longitude 149.166497° east; then generally easterly and generally north easterly along the centreline of that river and the centreline of Teelba Creek to Latitude 27.794790° south; then generally north easterly and generally easterly passing though the following coordinate points:

Then easterly to the intersection of the line joining Longitude 150.793880° east, Latitude 27.356010° south and Longitude 150.835970° east, Latitude 27.368300° south with the south western boundary of the Condamine River watershed; then generally southerly, generally easterly and again generally southerly along that watershed to its intersection with the line joining Longitude 151.125600° east, Latitude 27.802770° south and Longitude 151.125600° east, Latitude 27.833340° south; then generally southerly passing through the following coordinate points:

Then south easterly to the intersection of the line joining Longitude 151.088930° east, Latitude 28.582880° south and Longitude 151.098730° east, Latitude 28.619720° south with the southern boundary of the Macintyre Brook watershed; then generally westerly along that watershed back to the commencement point.

Note

Data Reference and source

Drainage basin sub-area data depicts a subdivision of the major drainage basins (catchment) in Queensland, Dataset sourced from Department of Natural Resources and Mines, Qld (20 Feb 2009).

Cadastral data Department of Natural Resources and Mines, Qld (20 Feb 2009).

Topographic vector data is © Commonwealth of Australia (Geoscience Australia) 2003.

Reference datum

Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time

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.

Part 3 –– Map of Determination Area

Keymap

Sheet 1

Sheet 2

Sheet 3

SCHEDULE 2 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters are excluded from the Determination Area:

1.    Those land and waters within the External Boundary described in Part 2 of Schedule 1, which at the time the native title determination application was made were the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) and are excluded from the Determination Area as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

2.    Specifically and to avoid any doubt, the land and waters described in (1) above includes:

(a)    the tenure based exclusions under ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth), and to which s 21 of the Native Title (Queensland) Act 1993 (Qld) applies;

(b)    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 to which 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);

(c)    but is not limited to, all of the land and waters described in the following table and depicted in pink on the determination map:

SCHEDULE 3 – NATIVE TITLE HOLDERS

1.    The native title holders are the Bigambul People. The Bigambul People are those people who are biological descendants of the following deceased persons:

(i)    Nellie Yumbeina;

(ii)    Queen Susan of Welltown;

(iii)    Jack Noble;

(iv)    Sally Murray;

(v)    Susan, Mother of Duncan Daniels; or

(vi)    Jack and James Armstrong.

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)    the agreement between Russell Doctor, Elaine Georgetown, Rhonda Sandow and Cyril Logan on their own behalf and on behalf of the Bigambul People (QUD 101/2009) and the Balonne Shire Council, Western Downs Regional Council, Goondiwindi Regional Council and Toowoomba Regional Council which was authorised by the native title claim group on 9 September 2016 (the Bigambul People and Local Government ILUA); and

(b)    the agreement between Russell Doctor, Elaine Georgetown, Cyril Logan and Rhonda Sandow on their own behalf and on behalf of the Bigambul People (QUD101/2009) and Ergon Energy Corporation Limited ACN 087 646 062, which was authorised by the native title claim group on 9 September 2016 (the Bigambul People and Ergon Energy Indigenous Land Use Agreement).

2.    The rights and interests of the State of Queensland, Goondiwindi Regional Council, Toowoomba Regional Council and Western Downs Regional Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access those roads.

3.    The rights and interests of the Western Downs Regional Council, Goondiwindi Regional Council and Toowoomba Regional Council as the local governments for that part of the Determination Area within their respective Local Government Areas, including:

(a)    their powers, functions, responsibilities and jurisdiction under a Local Government Act;

(b)    their rights and interests under any interest in land or waters within the Determination Area including under any lease, license, access agreement, easement or reserve in the Determination Area;

(c)    the rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owners and operators of infrastructure, structures, earthworks, access works, facilities and other improvements within the Determination Area;

(d)    the rights under any agreements between the local governments and third parties which relate to land or water in the Determination Area; and

(e)    the rights of their employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paragraphs (a) to (d).

4.    The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

5.    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 telecommunications 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 telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and

(d)    under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.

6.    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 agreements relating to the Determination Area existing or entered into before this Determination is 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.

7.    The rights and interests of Australia Pacific LNG Pty Limited as the holder of Authority to Prospect 663 granted under the Petroleum Act 1923 (Qld) and administered under the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

8.    The rights and interests of Australia Pacific LNG Pty Limited as the holder of Potential Commercial Area 85, granted and administered under the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

9.    The rights and interests of Australia Pacific LNG Pty Limited arising under the Right to Negotiate Deed of Agreement dated 19 August 2010, entered into under s 31(1)(b) of the Native Title Act 1993 (Cth), regarding the Addition of Excluded Land into Authority to Prospect 663.

10.    The rights and interests of Australia Pacific LNG Pty Limited arising under the Agreement dated 16 June 2010 that is ancillary to the Deed in paragraph 10 above between Russell Doctor, Arthur Georgetown, Cheryl Moggs, Tony Turnbull, George Hopkins, Gary Woodbridge and Veronica Jarrett, in their capacity as the “Bigambul Applicant” acting on behalf of the Bigambul People, and Australia Pacific LNG Pty Limited.

11.    The rights and interests of Origin Energy Resources Limited and Australia Pacific LNG Pty Limited arising under the Cultural Heritage Management Plan dated 13 November 2009 between Russell Doctor, Arthur Georgetown, Cheryl Moggs, Tony Turnbull, George Hopkins, Gary Woodbridge and Veronica Jarrett, in their capacity as “Endorsed Aboriginal Parties” acting on behalf of the Bigambul People, and Origin Energy Resources Limited.

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

13.    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.

14.    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 and the Commonwealth.

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

REASONS FOR JUDGMENT

REEVES J:

1    On 18 October 2016, the Court made orders by consent splitting the Bigambul native title determination proceeding into two parts: Bigambul Part A and Bigambul Part B. Bigambul Part A comprised all of the claim area except for six parcels of land that were affected in part by the same issues that were being considered by the Full Court in an appeal from the judgment in Doyle and others on behalf of the Iman People #2 v State of Queensland [2016] FCA 13 (Iman). Those six parcels became Bigambul Part B.

2    On 1 December 2016, the Court made a determination of native title pursuant to s 87A (1)(b) of the Native Title Act 1993 (Cth) (NTA) with respect to Bigambul Part A: Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 (Bigambul Part A).

3    The effect of the Full Court decision in Iman ([2016] FCAFC 189, delivered on 21 December 2016) was that the grants in issue that had been made by the State were valid previous exclusive possession acts under s 23B of the NTA and, as such, any native title rights and interests held with respect to the land and waters affected by those grants had been extinguished.

4    As a consequence of the Iman decision, the parties in Bigambul Part B have now agreed that native title has been extinguished over all of the land and waters in Part B save for the following parcels comprising approximately 92,853 hectares and located within the Kumbarilla, Waar Waar and Boondandilla State Forests:

(a)    that part of Lot 155 on FTY1778 excluding the area formerly described as Lot 25 on DY390 and that is within the external boundary as described in Part 2;

(b)    that part of Lot 223 on FTY1496 excluding the areas formerly described as Lot 18 on DY485 and Lot 1 on PG19 and that is within the external boundary as described in Part 2;

(c)    that part of Lot 235 on FTY1669 excluding the area formerly described as Lot 17 on MH616 and that is within the external boundary as described in Part 2.

5    On 24 May 2017 the parties filed an agreement with the Court (the s 87A agreement) containing a proposed determination of native title with respect to the above described parcels. Those parcels are described in Part 1 of Schedule 1 in the proposed determination as the Determination Area.

6    The power of the Court to give effect to the parties’ agreement is founded on s 87A of the NTA. That section sets out the various conditions which will trigger the jurisdiction of the Court in the event that the parties have reached an agreement on the terms of an order to resolve a proceeding where the agreement relates to a part of the claim area (s 87A(1)(b)). The first condition is that the notice period under s 66 of the NTA must have ended prior to the parties’ written agreement being filed with the Court (s 87A(1)(b)). The National Native Title Tribunal’s notification of the Bigambul application was completed in 2009 and so that condition has been met.

7    Secondly, the agreement of the parties must relate to an area (the determination area) which is included in the area covered by the application (s 87A(1)(b)). As I have already mentioned above, in this instance the agreement of the parties relates to the three parcels in Bigambul Part B described as the Determination Area. Accordingly, that condition has also been met. Thirdly, all of the parties described in s 87A(1)(c) must be parties to the agreement. That condition, too, has been met because both the Bigambul applicant on behalf of the Bigambul native title claim group and the remaining respondent parties, the State of Queensland, the Goondiwindi, Toowoomba and Western Downs Regional Councils, Ergon Energy Corporation, Telstra Corporation Limited, two energy companies and a number of pastoralists are all parties to the s 87A agreement. Fourthly, the terms of the agreement must be signed by or on behalf of those parties (s 87A(1)(d)). It is apparent from the s 87A agreement filed with the Court on that that condition has also been met.

8    The fifth condition is that the Court must be satisfied that an order in the terms of the proposed determination, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). For present purposes, the terms of the proposed determination will be within the power of the Court if it complies with s 94A of the NTA, if the rights and interests included in the proposed determinations are recognisable by the common law of Australia and if there is no other determination in existence over the area the subject of the proposed determinations.

9    Section 94A requires the Court, in making a determination, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 outlines the content of a determination of native title as:

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 and 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)

10    In my reasons for the decision in Bigambul Part A, I set out a detailed summary of the evidence that the Bigambul applicant had advanced to establish that native title existed in the determination area, who it was that held the native title and the nature and extent of the native title rights and interests that existed in the determination area (see Bigambul Part A at [15]–[21]). Since the same evidence is relied upon with respect to Bigambul Part B and it is a small part of the claim area surrounded by the determination area of Part A, it is unnecessary for me to do more than refer to this earlier analysis. Having regard to that analysis and having examined the terms of the proposed determination attached to the s 87A agreement, I am satisfied that the matters outlined in s 225(a) and (b) are properly articulated therein.

11    Section 225(e) does not arise in this matter. However, there were some aspects of s 225(c) and (d) that prompted me to seek submissions from the parties. Specifically, I raised a concern about the appropriateness of including clauses 1 and 12 in Schedule 4 to the proposed determination. Those clauses provide:

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

(a)    the agreement between Russell Doctor, Elaine Georgetown, Rhonda Sandow and Cyril Logan on their own behalf and on behalf of the Bigambul People (QUD 101/2009) and the Balonne Shire Council, Western Downs Regional Council, Goondiwindi Regional Council and Toowoomba Regional Council which was authorised by the native title claim group on 9 September 2016 (the Bigambul People and Local Government ILUA); and

(b)    the agreement between Russell Doctor, Elaine Georgetown, Cyril Logan and Rhonda Sandow on their own behalf and on behalf of the Bigambul People (QUD101/2009) and Ergon Energy Corporation Limited ACN 087 646 062, which was authorised by the native title claim group on 9 September 2016 (the Bigambul People and Ergon Energy Indigenous Land Use Agreement).

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

12    The paragraphs of the proposed determination orders that correlate to these clauses are 6, 10 and 11. Relevantly, they provide that:

6.    Subject to paragraphs 7, 8 and 9 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 the non-exclusive rights to:

…

10.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) as they exist at the date of this Determination are set out in Schedule 4 (“Other Interests”).

11.    The relationship between the native title rights and interests described in paragraph 6 and the Other Interests described in Schedule 4 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;

(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;

(d)    without limiting the operation of paragraphs 11(a) to (c) above, before the native title rights and interests (referred to in paragraph 6 above) are exercised on state forest land over which a term lease for grazing purposes has been granted, the native title holders must contact the lessee of the grazing lease, provided their contact details have been provided to the Bigambul Native Title Aboriginal Corporation ICN No. 8479, and discuss any safety issues associated with the proposed exercise of native title rights and interests and make reasonable efforts to agree on the route of access.

13    In its submissions on the concerns I raised, the Bigambul applicant submitted that it did not consider it was necessary to describe the ILUA interests in clause 1 of Schedule 4 of the proposed determination, but it agreed to include them to accommodate the requests of the respondents who wanted to have the determination record those interests. As to the interests described in clause 12, the Bigambul applicant submitted that clause did not add anything to the legal position as the proposed determination did not give the native title holders an exclusive right to fish. As well, it submitted that, if there is a common law right in the public to fish, then that interest is an interest that falls within the terms of s 225(c) and it should therefore be included in the determination.

14    In its submissions, which were joined in by all the other respondents, the State first observed that it was not a party to the ILUAs described in clause 1 of Schedule 4 and it had no knowledge of their contents. However, as a matter of principle, it submitted that it was appropriate to describe those interests in that. That was so, it submitted, because:

Sections 94A and 225(c) of the NTA require a determination of native title to set out the nature and extent of “any other interests in relation to a determination area”. The definition of “interest”, in relation to land or waters, is contained in s 253, and is not confined to a legal or equitable interest in land. It includes any “right ... charge, power or privilege” over, or in connection with, land or waters, as well as a restriction on the use of land or waters. It follows that any right or interest in the proposed determination area that arises under an ILUA and falls within the definition of “interest”, must be included in Schedule 4 of the determination.

By force of s 24EA of the NTA, once details of an ILUA are entered on the Register of Indigenous Land Use Agreements, the ILUA is given force and effect as if it were a binding contract among the parties to the agreement and all persons holding native title in relation to any of the land or waters covered by the agreement. In addition, s 24EB, broadly speaking, provides that a future act done pursuant to an ILUA is valid to the extent that it affects native title, and the non-extinguishment principle applies to the act.

Nevertheless, in the State’s submission, the fact that the NTA governs the effect of an ILUA does not negate the requirement to include rights and interests under the ILUA as “other interests” in Schedule 4 of the determination. That is because s 225(d) of the NTA requires a determination to set out the relationship between, on the one hand, the native title rights and interests, and, on the other hand, the “other interests referred to ins 225(c), “taking into account the effect of the [NTA]”.

In other words, despite the fact that s 225(d) expressly contemplates that the relationship between two sets of interests may be governed by the NTA (as opposed to an order of the Court), a determination is still required to specify the nature of that relationship …

(Emphasis in original)

15    In addition, the State submitted that there was a practical utility in describing the ILUA interests in clause 1 of Schedule 4 of the determination because, when that is combined with the statement in paragraph 11 of the proposed determination orders, the parties are left in no doubt that any regulatory restrictions applying to any of the land and waters in question prevail over what might otherwise have been an unconstrained right to exercise native title rights. Finally, the State submitted that the inclusion of clause 1 of Schedule 4 for Bigambul Part B was appropriate to avoid any conflict with the terms of the determination in Bigambul Part A, which included a similar provision.

16    As to the interests described in clause 12 of Schedule 4, the State submitted that the rights and interests of members of the public arising under the common law are also “interests” as defined in s 253 of the NTA and are therefore required to be included in the determination by virtue of s 225(c) of the NTA. It submitted that clause 12 consisted of a general description of a particular kind or class of native title interests followed by a specific instance of that general class. It submitted that the use of a general descriptor is permissible under s 225(c) and is, in fact, contemplated by the note which appears below that section. It therefore submitted that it was appropriate to include clause 12 of Schedule 4 because:

(a)    inclusion of the specific instance of a public right to fish makes clear to the parties and members of the public that this particular common law right exists in the determination area; and

(b)    retention of the general descriptor ensures, out of an abundance of caution, that all common law public rights are dealt with in the determination so as to guard against a scenario where it may later transpire that other rights of this kind are, in fact, extant in the determination area.

17    Having considered the State’s helpful and detailed submissions on these clauses of Schedule 4 of the proposed determination, I consider it is correct and it is therefore appropriate, for the reasons stated by it in those submissions, to include those clauses in the final determination.

18    Finally with respect to condition 5, I am satisfied that there is no other determination of native title in existence over any part of the Determination Area and that the native title rights and interests of the Bigambul People in that area are recognisable by the common law of Australia.

19    The sixth and final condition concerns the operation of s 87A(4)(b) of the NTA. That section requires the Court to be satisfied that it is appropriate to make a determination in terms of the parties’ agreement. In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) (at [5]–[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining this question of “appropriateness” under s 87. For the reasons canvassed in Bigambul Part A (at [6]), in my view, the same factors apply equally to s 87A. It is not necessary for me to repeat all those observations here, it will suffice to set out the concluding summary as follows (at [14]):

It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation..; whether the terms of the proposed order are unambiguous and clear …; and whether the agreement has been preceded by a mediation process …

20    On this question, I have been assisted by the submissions filed by the Bigambul applicant on 19 May 2017. Having regard to those submissions, I am satisfied that there exists a free and informed agreement between the parties. In reaching this conclusion, I have had particular regard to the fact that all parties have had the advantage of competent legal representation and this proceeding has been supervised under active case management by a Registrar of the Court since before it was split into Parts A and B. Finally, I am satisfied that the terms of the proposed determination are unambiguous and clear. I am therefore satisfied it is appropriate to make the proposed determination attached to the s 87A agreement.

21    Before concluding I should also record that, pursuant to s 56(2) of the NTA, the Bigambul applicant has nominated the Bigambul Native Title Aboriginal Corporation RNTBC ICN 8479 (“the Corporation”) as the prescribed body corporate to hold the native title of the claimant group in trust following the making of this determination. That nomination is in writing and the Corporation has given its consent to it. I am therefore satisfied that the relevant requirements of the NTA and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met in this respect.

22    The parties are to be congratulated in achieving this negotiated agreement of the remaining part of the Bigambul People’s native title determination application. The determination today will resolve the entirety of the Bigambul application and will allow the parties and the broader community to move to the next stage of their relationships with each other and with respect to this land.

Associate:    

Dated:    23 June 2017

SCHEDULE OF PARTIES