FEDERAL COURT OF AUSTRALIA

Lightning on behalf of the Nywaigi People v State of Queensland [2018] FCA 493

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 section 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 1A and depicted in the map attached to Schedule 1B.

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

5.    The native title is held by the Nywaigi 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 1A are:

(a)    other than in relation to Water, the right 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 1A 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)    be buried and bury native title holders within the area;

(h)    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;

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

(j)    hold meetings on the area;

(k)    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; and

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

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;

(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 INTERPRETATION

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

“High Water Mark” means the ordinary high-water mark at spring tides;

“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 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

(d)    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;

(c)    water from an underground water source; and

(d)    tidal water.

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 Warga Badda Nywaigi Aboriginal Corporation (ICN:8690), 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

Schedule 1A – 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 described in Part 3 below, and depicted on the map contained in Schedule 1B, excluding the areas described in Schedule 2.

To the extent of any inconsistency, the written description, including as set out in Parts 1, 2 and 3, prevails over the map contained in Schedule 1B.

Part 1 – Exclusive Areas

All of the land and waters described in the following table and depicted in dark blue on the map contained in Schedule 1B:

* denotes areas to which s 47A of the Native Title Act 1993 (Cth) applies

Part 2 – Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the map contained in Schedule 1B:

Part 3 – External Boundary Description

This determination area covers all lands and waters within the external boundary described below:

Commencing at the northernmost point of Lot 405 on CWL3542, being a point on the south eastern bank of Victoria Creek at its mouth, and extending generally southerly and generally south easterly along the High Water Mark (across the mouths of any waterways flowing into the Halifax Bay between the seaward extremities at High Water Mark of each of the opposite banks of each such waterway) to the centreline of Rollingstone Creek; then generally southerly along that centreline to Latitude 19.057024° South; then generally south westerly passing through the following peaks:

Then southerly to a point on the northern boundary of Lot A on WG318 at Longitude 146.371809° East; then generally north westerly along the boundaries of that lot, Lot 59 on NPW935, Lot 11 on WG155 and southern boundary of Ewan/Mt Spec Road to the boundary of native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002); then north easterly, generally northerly, generally easterly, again generally northerly and generally westerly along the boundaries of that determination to Jacobsen Track; then generally northerly along the eastern boundary of that track to a corner at Latitude 18.888853° South; then generally north westerly, generally northerly and generally westerly along a watershed, passing through the following coordinate points, to the source of Plumtree Creek at Longitude 146.058666° East, Latitude 18.866757° South:

Then generally north easterly along the centreline of that creek to Latitude 18.840700° South; then north easterly to the centreline of Frances Creek at Latitude 18.833670° South; then generally north easterly passing through the following coordinates:

Then easterly to the centreline of Victoria Creek at Longitude 146.274197° East; then generally south easterly and generally north easterly along the centreline of that creek to its mouth; then south easterly back to the commencement point.

Note

Data Reference and source

    Application boundary data compiled by National Native Title Tribunal based on data sourced from Department of Natural Resources and Mines, Qld.

    Native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002) as determined by the Federal Court on 1 August 2012.

    Cadastre data sourced from Department of Natural Resources and Mines, Qld (1 August 2014).

    Rivers/Creeks, watershed and roads based on cadastre, else, derived from 100K topographic maps.

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.

Schedule 1B – Map of Determination Area

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 3 of Schedule 1A, which at the time the native title determination application was made:

(a)    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

(b)    to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied at the time of the native title determination application;

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) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and includes, but is not limited to, the whole of the land and waters described as:

(i)    Lot 11 on Crown Plan A77412;

(ii)    Lot 1 on RP727506;

(iii)    Lot 66 on RP729323;

(iv)    Lot 68 on RP729323;

(v)    Lot 69 on RP729323;

(vi)    Lot 1 on RP747158;

(vii)    Lot 1 on RP722623;

3.    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), and includes, but is not limited to, the whole of the land and waters described as:

(i)    Lot 9 on WG269; and

(ii)    Lot 10 on SP202090.

Schedule 3 – NATIVE TITLE HOLDERS

1.    The native title holders are the Nywaigi People.

2.    The Nywaigi People are those people who are the descendants of one or more of the following people:

(a)    Billie and Jennie, whose known child is Rosie Addo, whose known child is Nellie/Clara Cassidy/Clara Quetta, whose known child is Ernest Addo Snr;

(b)    Rosie Tootoolie, whose known children are Jack Addo and Charlie Addo;

(c)    Dora, whose known child is Emily King, whose children are Tommy Anderson Jnr, Frank Anderson Snr and Ellen Anderson;

(d)    Tooya, whose known children are Amy Bligh, Kitchener Bligh, Reginald Bligh Snr/Roberts and Warren Bligh;

(e)    Billy and Jennie, whose known child is Rosie, whose known child is Billy Cassady;

(f)    Rosie Halifax, whose known children are Thomas Curley Snr and Peter Wallace;

(g)    Heron and Alice, whose known child is Rosie Dennis, whose known children are Roy Heron, Jimmy Dennis, Henry Dennis Snr, Evelyn Dennis and Alexander Dennis;

(h)    Mungi, whose known child is Paddy Payne;

(i)    Charlie Lewis Snr/Henry and Rosie Lewis/Mingabi, whose known children are Daphne Lewis/Roach, Joan Lewis/Tiers, Freddie Lewis and Charlie Lewis Jnr;

(j)    Dyilni, whose known child is Mary/Dyinbayi, whose known child is Willie Seaton Snr/‘Bunurra’;

(k)    Tommy Roach and Nora, whose known children are Peter Roach and Jack Roach/Wargurdal (an old ‘Nywaigi King’);

(l)    Billy Erin and Jeannie, whose known children are Long Erin/Long Heron, Charlie Roberts/Lambert, Bob Roberts/Robert Ingham, Rosie Roberts and Louisa Roberts;

(m)    Jimmy Kerr and Annie, whose known child is Tippo Ingham;

(n)    Brothers Maturra, Nitoo (also known as Ditchurogoo), Gilman (also known as Tommy Landerson), or Dilgorru (also known as King Bill); or

(o)    Elizabeth Bellyarre/Lizzie Balyarri, whose parents are Billy and Kitty.

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 Hinchinbrook Shire Council or Townsville City Council (‘Council’):

(a)    under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Lands Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be the Council’s local government area;

(b)    as the:

(i)    lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not;

(ii)    grantor of any licences or other rights and interests which were validly granted before the date on which these orders are made and whether separately particularised in these orders or not;

(iii)    holder of any estate or interest in land, as trustee of any reserves, that exist in the Determination Area;

(c)    as the owner and operator of infrastructure, and those facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to:

(i)    dedicated roads operated by Council;

(ii)    undedicated but constructed roads except for those not operated by Council;

(iii)    gravel pits operated by Council;

(iv)    water pipelines and water supply infrastructure;

(v)    drainage facilities;

(vi)    cemetery and cemetery-related facilities; and

(vii)    camping and holiday park facilities.

(d)    to enter the land for the purposes described in paragraphs (a), (b) or (c) above by its employees, agents or contractors to:

(i)    exercise any of the rights referred to in paragraph 5 below;

(ii)    inspect maintain and repair the infrastructure, facilities and other improvements referred to in paragraph (c) above;

(iii)    undertake operational activities in its capacity as local government such as feral animal control, weed control, erosion control, waste management and fire management.

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, occupy and operate telecommunication facilities; and

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

(c)    for its employees, agents or contractors to access its telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and

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

3.    The rights and interests of Ergon Energy Corporation 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 Queensland Electricity Transmission Corporation Limited trading as Powerlink Queensland (ACN 078 849 233):

(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 an electricity entity under the Electricity Act 1994 (Qld) including rights to enter and pass through the Determination Area to access, use, maintain, repair, replace, upgrade or otherwise deal with Works; and

(c)    under any lease, licence, easement, permit or agreement within the Determination Area.

5.    The rights and interests of the State of Queensland and the Councils 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 the roads.

6.    The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved, including the rights and interests of the holders of permits issued by the trustees of the reserves over the following land:

(a)    Lot 120 on CWL3246;

(b)    Lot 382 on SP136985; and

(c)    Lot 545 on CWL666.

7.    The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:

(a)    Fisheries Act 1994 (Qld);

(b)    Land Act 1994 (Qld), including the rights and interests of the holders of the following permits:

(i)    State Permit No 713532725 over Lot 120 on CWL3246, Title Reference 40001790;

(ii)    Permit to Occupy PO 0/234141 over Lot 35 on CWL3002, Title Reference 40060342;

(iii)    Permit to Occupy No 701397340 over Lot 120 on CWL3246, Title Reference 17681157;

(iv)    Permit to Occupy 701397341 over Lot 120 on CWL3246, Title Reference 17681158;

(v)    (v)    Permit to Occupy 701397343 over Lot 120 on CWL3246, Title Reference 17681159

(vi)    Permit to Occupy 701397344 over Lot 120 on CWL3246, Title Reference 17681160;

(vii)    Permit to Occupy 701397345 over Lot 120 on CWL3246, Title Reference 17681162;

(viii)    Permit to Occupy 701397356 over Lot 120 on CWL3246, Title Reference 17681172;

(ix)    Permit to Occupy 701397358 over Lot 120 on CWL3246, Title Reference 17681173;

(x)    Permit to Occupy 701397364 over Lot 120 on CWL3246, Title Reference 17738128;

(xi)    Permit to Occupy 701397365 over Lot 120 on CWL3246, Title Reference 17687045;

(xii)    Permit to Occupy 701397367 over Lot 120 on CWL3246, Title Reference 17688072;

(xiii)    Permit to Occupy 701397369 over Lot 120 on CWL3246, Title Reference 17729052;

(xiv)    Permit to Occupy 701397370 over Lot 120 on CWL3246, Title Reference 17723114;

(xv)    Permit to Occupy 701397372 over Lot 120 on CWL3246, Title Reference 40004957;

(xvi)    State Permit No 713386002 over Lot 120 on CWL3246, Title Reference 40058387;

(xvii)    State Permit No 713394720 over Lot 120 on CWL3246, Title Reference 40050699;

(xviii)    State Permit No 713532726 over Lot 120 on CWL3246, Title Reference 17745077;

(xix)    State Permit No 713532727 over Lot 120 on CWL3246, Title Reference 17743004;

(xx)    State Permit No 713665787 over Lot 120 on CWL3246, Title Reference 40022492;

(xxi)    State Permit No 715642152 over Lot 120 on CWL3246, Title Reference 40067863;

(xxii)    State Permit No 716287967 over Lot 120 on CWL3246, Title Reference 40069423;

(xxiii)    State Permit No 717474349 over Lot 120 on CWL3246, Title Reference 40067579;

(xxiv)    State Permit No 717474351 over Lot 120 on CWL3246, Title Reference 40068460.

8.    The rights and interests of members of the public arising under the common law, including but not limited to the following:

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

9.    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (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)    coastal waters;

(d)    beaches;

(e)    stock routes; and

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

10.    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

ROBERTSON J:

The land

1    The traditional country is lands and waters in and around Victoria Creek to the north and Rollingstone Creek to the south, west to the Paluma Ranges and east to the waters of Halifax Bay. Halifax Bay is to the north and west of the City of Townsville in the State of Queensland.

The people

2    The Application is made by Ms Roberta Lightning, Mr John Anderson, Mr Gerald Berry, Mr Victor Bligh, Mr Victor Cassady, Ms Bernice Dwyer, Mr Phil Rist, and Ms Vannessa Oui.

3    I have had the advantage of considering the detailed submissions filed on 29 March 2018 on behalf of the Applicant.

The proceedings in the Court

4    The Nywaigi People Application was originally filed on 10 April 2015 with a notification closing date under section 66 of the Native Title Act 1993 (Cth) of 11 November 2015. An amended Form 1 was filed on 1 September 2017 pursuant to orders made by the Court on 28 August 2017, including amendments to the claim group description.

5    The Application was notified by the Native Title Registrar under section 66 and the period of three months after the notification day referred to in subsections 66(8) and 66(10)(c) of the Native Title Act ended on 11 November 2015.

6    By the Application, the Applicant seeks a determination of native title under section 61 of the Native Title Act, on the Applicant’s own behalf and on behalf of the Nywaigi People, over the lands and waters I have described above.

7    The State of Queensland, Hinchinbrook Shire Council, Townsville City Council, Telstra Corporation Limited, Ergon Energy Corporation Limited and various permit holders and people with fishing interests are parties to the Application.

8    All parties to the Application have reached agreement that native title exists and in regard to the nature and extent of those native title rights and interests over the areas covered by the Application (the “Determination Area”). The agreement, made under section 87(2) of the Native Title Act, was filed on 6 April 2018.

9    Details of the Application were entered onto the Register of Native Title Claims on 5 June 2015.

10    The Registrar was satisfied that the Amended Application addressed the criteria of the registration test and the Application remains on the Register of Native Title Claims.

11    The external boundaries of the Determination Area are described in Schedule 1 to the Minute of Proposed Consent Determination of Native Title filed in the Court on 4 April 2018.

Claimants’ connection to the claim area

12    As to the assessment of connection materials and connection to country of the native title claimants, the Applicant provided the State and the other Respondents with the following connection material in support of the claimants’ connection to the claim area:

(a)    Affidavit of Phil Rist sworn 1 April 2015 and filed with the Form 1 application 10 April 2015.

(b)    Affidavit of Carol Berry sworn 20 April 2016 and filed 21 April 2016.

(c)    Affidavit of Allan (Bodie) Berry sworn 20 April 2016 and filed 21 April 2016.

(d)    Affidavit of Henry Dennis sworn 3 September 2015 and filed 21 April 2016.

(e)    Affidavit of Victor Bligh sworn 19 January 2017 and filed 21 April 2016.

(f)    Affidavit of Henry Dennis sworn 21 April 2016 and filed the same day.

(g)    Affidavit of Henry Dennis sworn 17 January and filed 24 January 2017.

(h)    Affidavit of Phillip Rist sworn 23 January 2017 and filed 24 January 2017.

(i)    Affidavit of Carol Berry sworn 24 January 2017 and filed the same day.

(j)    Affidavit of Cedric Cassady sworn 23 January 2017 and filed 24 January 2017.

(k)    Affidavit of Cynthia Payne sworn 25 January 2017 and filed 27 January 2017.

(l)    Affidavit of Rosalind Dawn Glass sworn 17 July 2017 and filed 1 September 2017 under attachment T of the Amended the Form 1.

(m)    Mr Daniel Leo, Native Title Connection Report for the Nywaigi People, Girringun Regional Society, North Queensland (‘Leo 2016’) and filed 27 March 2018.

(n)    Mr Daniel Leo, Addendum regarding the name of the Regional Society that can be termed ‘Southern Rainforest’ or ‘Girringun’ (‘Leo 2018’) and filed 27 March 2018.

(o)    Mr Daniel Leo, Amended Addendum regarding Adoption within the Southern Rainforest (Girringun) Regional Society and filed 28 March 2018.

(p)    Nomination and Consent of Warga Badda Nywaigi Aboriginal Corporation (the Corporation) PBC ICN 8690, filed 22 March 2018.

Authorisation by Claim Group members

13    I have read the affidavits which depose to the attendance by members of the Nywaigi People at an authorisation meeting on 18 December 2014, organised by the North Queensland Land Council Native Title Representative Body (the NQLC).

14    Those affidavits were made by Ms Roberta Lightning, dated 19 January 2015, Mr Phillip Rist, dated 1 April 2015, Mr Victor Cassady, dated 19 January 2015, Mr Victor Bligh, dated 19 January 2015, Mr John Anderson, dated 30 January 2015, Mr Gerald Berry, dated 14 January 2015 and Ms Evelyn Noble, dated 16 January 2015.

15    I am satisfied that proper notice was given of the meeting both by correspondence sent by the NQLC and by public notice. I note the unanimous resolution of the attendees that sufficient notice was given of the meeting for decisions to be made about matters on the agenda; that the meeting was sufficiently representative of members of the Nywaigi claim group to make decisions about matters at the meeting; that the meeting was sufficiently representative of the Nywaigi People to authorise persons to be the applicant; and that the decision-making process followed by the persons attending the meeting was to be:

    By consensus, the decision-making process will be that the Nywaigi People will break into their family groups.

    Each family will make the decision on the resolution and appoint a spokesperson to announce their decision.

    The majority of the families present will decide the resolution or issue.

16    I am satisfied that all decisions at the authorisation meeting were made in accordance with this process. I am also satisfied that in accordance with the decisions made at the authorisation meeting, the NQLC was instructed to take the necessary steps to assist the applicant to file the claim with the Court.

17    I have read the affidavit sworn 29 March 2018 by Cheryl Ann Thomson, a solicitor employed by the NQLC and the solicitor on the record for this native title determination application.

18    Ms Thomson deposes, and I accept, that the Corporation remains an Aboriginal and Torres Strait Islander corporation. All of the members of the Corporation can be demonstrated to be Nywaigi People as described in Schedule 3 of the Proposed Determination that is part of the Agreement under section 87(2) of the Native Title Act filed by the State on 6 April 2018. The description of ‘Nywaigi People’ within the Corporation’s Rules coincides with that of the Native Title Holders described in Schedule 3 of the Proposed Determination.

19    I find that the Applicant is authorised to consent to the Court making a determination in or consistent with the terms of the Determination.

20    The signatures are those of, or for, the NQLC, the State of Queensland, the Hinchinbrook Shire Council and Townsville City Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Tim Fellows, Ted Loveday, Karen Quadrell, Matt Quadrell, David Swindells, Crystal Creek Hut Owners Association, Halifax Bay Recreation & Lifestyle Association Inc, Catherine Maree Bornis, Suzanne Ellen Kettlewell, Allan Leslie West and Robert Henry West.

Determination

21    The Applicant submits that it is appropriate for the Court to exercise its discretion under section 87 to make an order in the terms of the Proposed Determination without holding a hearing having regard to the principles in Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 for the following reasons:

(a)    All parties have had the benefit of independent and competent legal advice and have freely entered into an agreement under section 87 of the Native Title Act relating to the Proposed Determination.

(b)    It is consistent with objects in the Native Title Act that issues and disputes concerning native title are resolved by mediation.

(c)    The State has taken a “real interest” in the proceeding on behalf of the community and given appropriate consideration to the Applicant’s connection material.

(d)    The material relied upon by the Applicant is capable of satisfying sections 47A and 47B of the Native Title Act and the respondent parties agree.

(e)    The connection material filed by the Applicant satisfies section 223 of the Native Title Act and supports the making of the Proposed Determination.

(f)    The requirements of sections 56, 94A and 225 of the Native Title Act are satisfied.

22    Section 87, so far as relevant, is as follows:

87    Power of Federal Court if parties reach agreement

Application

(1)    This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:

(a)    agreement is reached between the parties on the terms of an order of the Federal Court in relation to:

(i)    the proceedings; or

(ii)    a part of the proceedings; or

(iii)    a matter arising out of the proceedings; and

(b)    the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and

(c)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.

Power of Court

(1A)    The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:

(a)    whichever of subsection (2) or (3) is relevant in the particular case; and

(b)    if subsection (5) applies in the particular case—that subsection.

Agreement as to order

(2)    If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

Note:    If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

Agreement as to part of proceedings

(3)    If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings, as the case may be, to which the agreement relates.

Orders about matters other than native title

(4)    Without limiting subsection (2) or (3), if the order under that subsection does not involve the Court making a determination of native title, the order may give effect to terms of the agreement that involve matters other than native title.

(5)    Without limiting subsection (2) or (3), if the order under that subsection involves the Court making a determination of native title, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title.

(6)    The jurisdiction conferred on the Court by this Act extends to:

(a)    making an order under subsection (2) or (3) that gives effect to terms of the agreement that involve matters other than native title; and

(b)    making an order under subsection (5).

(7)    The regulations may specify the kinds of matters other than native title that an order under subsection (2), (3) or (5) may give effect to.

…

23    I find that the requirements of section 87 have been established.

24    In particular, section 87 applies because, first, after the end of the period specified in the notice given under section 66, agreement has been reached between the parties on the terms of an order of the Court in relation to the proceedings.

25    Secondly, the terms of the agreement, in writing signed by or on behalf of the parties, have been filed with the Court.

26    Thirdly, for the reasons which follow, I am satisfied that an order in, or consistent with, those terms is within the power of the Court.

27    As to the Court’s power, first, the Application was validly made, having been authorised by the native title claimants according to a decision-making process agreed to and adopted in relation to authorising decisions of that kind, which authorised the Applicant to make the native title determination application, as required by section 251B of the Native Title Act.

28    Secondly, the Application seeks a determination of native title in relation to an area for which there is no approved determination of native title (section 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the Proposed Determination (section 68 of the Native Title Act).

29    Thirdly, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the Proposed Determination which would otherwise require orders to be made under section 67(1) of the Native Title Act.

30    Fourthly, the form of the Proposed Determination complies with sections 94A and 225 of the Native Title Act and the requirements of section 87 are otherwise satisfied.

31    I proceed under section 87(2), which is the section relevant in this particular case.

32    Turning to whether the order is appropriate within section 87(1A), the discretion under section 87 must be exercised judicially and within the subject matter, scope and purpose of the Native Title Act: Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland [2005] FCA 1117; 223 ALR 62 at [7] per Black CJ. This includes the resolution of disputes by agreement: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [8] per Bennett J.

33    The focus of the Court in considering whether the orders sought are appropriate is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11] per Mansfield J, citing with approval what had been said by North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37].

34    In order to form a view as to whether the legal requirements for the recognition of native title have been met, the Court is not necessarily required to receive evidence or to embark on its own enquiry on the merits of the claim where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [30], Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J, and Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J.

35    The Applicant submits, and I am satisfied, that all parties have had the benefit of independent and competent legal advice and have freely and on an informed basis come to an agreement under section 87.

36    The State has taken “a real interest in the proceeding in the interests of the community generally”: Munn for and on behalf of the Gunggari People at [29]. I accept that in so doing, the State (acting in the interests of the community generally, including the claimants), having regard to the requirements of the Native Title Act, and having made its assessment of the sufficiency of the evidence, has satisfied itself that the determination is justified in all the circumstances. I refer in this respect to Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [20], where Jagot J spoke of “ensuring prima facie cogent claims are resolved by agreement in a timely and fair manner, at a reasonable and proportionate cost to claimant groups” as being an important part of the public interest the State is intended to protect and promote.

37    I note that for those reasons, the Applicant has informed the Court that the Applicant considers the Proposed Determination to be within the power of the Court and that it would be appropriate that the Court make the Proposed Determination of native title.

38    In terms of section 223 of the Native Title Act, the Applicant submitted that it had demonstrated to the Court that the proposed orders were “rooted in reality” by providing the Court with the material that had been provided to the respondents, particularly the State, so as to inform the Court why the parties had agreed to compromise in the matter. The Applicant submitted the material needed to answer the following propositions:

(a)    Do the Nywaigi People, as a society or community, presently observe and acknowledge traditional laws and customs that are normative rules that originate from a pre-sovereignty (in this case, prior to 26 January 1788) Nywaigi society or community?

(b)    Do the Nywaigi People presently possess the native title in accordance with those traditional laws and customs?

(c)    Taking account that some change to, or adaptation of, traditional law or custom or some interruption of 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, has the normative system of the Nywaigi People had a continuous existence and vitality since sovereignty?

(d)    Are the rights and interests in the Proposed Determinations recognised by the common law of Australia?

39    The Applicant submitted that the material filed contained a substantial amount of evidence that cumulatively established (or established facts from which it was reasonable to infer) an affirmative answer to each of the propositions in [38(a)-(d)] above, that material being in the following categories:

(i)    Identification of the native title Claim Group:

(a)    Archaeological material

(b)    Anthropological material

(c)    Linguistic material

(d)    The pre-sovereignty society and Nywaigi People

(e)    Evidence from the Nywaigi group

(ii)    Continuity of connection:

(a)    Physical, cultural and spiritual connection

(b)    Traditional concepts of ownership and responsibility

(c)    Transmission of responsibilities

(d)    Continuity of connection by Nywaigi People

(e)    Continuity and transformation into the contemporary land tenure system

(f)    Traditional law and customs substantially maintained

(iii)    Normative system of traditional laws and customs

(iv)    Rights and interests recognised by the Common Law of Australia

40    I accept the submissions on behalf of the Applicant that the material establishes the following. Aboriginal people who spoke a dialect of the Nywaigi language, known as the Nywaigi dialect, used and occupied Nywaigi country prior to 1788. There has been ongoing use of the Nywaigi dialect and acquisition and transfer of Nywaigi cultural knowledge throughout the twentieth century, from which I infer that the Nywaigi People today are descended from a community of people who spoke the Nywaigi dialect of the wider Nywaigi language and who used and occupied Nywaigi country prior to 1788. The material provides a basis for Nywaigi identity and links the Nywaigi People today to land and language through the application of normative rules associated with “dreaming stories”. It identifies Nywaigi ancestors and locates them as a community of Nywaigi People in the early days of sustained European contact in Nywaigi country (from the 1870s). It links the Nywaigi People and establishes a basis for inferring that they are descended from a pre-sovereignty community of Nywaigi ancestors. It establishes the Nywaigi People today, and in 1900, as an organised society that possesses native title rights and interests in accordance with observed and acknowledged traditional laws and customs. The material also supports the intergenerational transfer of those laws and customs and I infer that they, as well as the rights possessed in accordance with them, have their origins in a pre-sovereignty Nywaigi society.

41    I also accept the submissions on behalf of the Applicant that the material establishes the continuity of the Nywaigi People as a society possessing native title in accordance with observed and acknowledged traditional law and custom, despite the impact of sustained European settlement in Ingham, the Victoria and Rollingstone Creeks and surrounding districts. While there have been some adaptations of laws and customs as a result of the impacts of sustained European settlement, those changes have not affected the laws and customs of the Nywaigi People such that it can still be said that the rights or interests asserted are possessed under their traditional laws acknowledged and the traditional customs observed. The established laws and customs also provide evidence that supports an inference, which I draw, that the established laws and customs, as well as the rights possessed in accordance with them, have their origins in a pre-sovereignty Nywaigi society.

42    I further accept the submissions on behalf of the Applicant that the material establishes that the rights and interests in the Proposed Determination are not antithetical to fundamental tenets of the common law and, subject to permissible adaptation, existed at sovereignty, survived that fundamental change in legal regime, and now can be enforced and protected. As such, they are recognised by the common law of Australia.

43    I find, in accordance with the submissions on behalf the Applicant, that, first, the connection material demonstrates that from first European contact (and thus from sovereignty) there were Indigenous people in the area now claimed as Nywaigi country. Secondly, the material also establishes the term Nywaigi is used to identify a name of a tribe and this tribe's language. In doing so members from 10 of the 12 known Nywaigi lineages also spoke of family identity, sub-family (branch) identity, and sub-tribal (clan) identity. Thirdly, the Nywaigi People demonstrate the continuity of their territoriality, that is, their traditional ownership of a contiguous tract of land and waters. Fourthly, Nywaigi society from generation to generation maintained its identity and existence, as well as its acknowledgement and observance of its Traditional Laws and Customs.

44    Section 94A states that an order in which the Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).

45    Section 225 is as follows:

225    Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

46    The orders the Court makes today constitute such a determination. The description of the native title holders in Schedule 3 of the Proposed Determination satisfies the requirements of section 225(a). It provides a clear identification of the Nywaigi People as a group and the means by which Nywaigi People can be identified as native title holders through descent from identified ancestors, in accordance with the traditional laws and customs of the Nywaigi People. As to the requirements of section 225(b), the native title rights and interests are described in the Proposed Determination. Paragraph 8(b) of the Proposed Determination provides that the native title rights and interests are subject to, and exercisable in accordance with the traditional laws acknowledged, and traditional customs observed, by the native title holders. As to the requirements of section 225(e), the native title rights and interests are clearly described in paragraphs 6 and 7 of the Proposed Determination as “exclusive” or “non-exclusive”. The Nywaigi People rely upon section 47A of the Act in relation to certain of the parcels listed as Exclusive Areas under Part 1 of Schedule IA of the Proposed Determination. In addition to areas to which section 47A applies, there are a number of other parcels described in the Proposed Determination as being Exclusive Areas. As to the requirements of sections 225(c) and (d), Paragraphs 11 and 12 of the Proposed Determination, together with Schedule 4 identify all other interests in relation to the Determination Area and establish that, to the extent that there is an inconsistency between those other interests and the determined native title, the other interests will prevail.

47    Section 55 of the Native Title Act provides that if the Court proposes to make an approved determination of native title and the determination is that native title exists at the time of making the determination, the Court must, at the same time as, or as soon as practicable after, it makes the determination, make such determinations as are required by sections 56 and 57. Section 57 is the relevant provision as the Nywaigi People have decided that the Corporation hold their native title “not as trustee” but as agent.

48    Section 57 provides, so far as relevant:

57    Determination of prescribed body corporate etc.

…

Where not trustee

(2)    If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3):

(a)    first, it must request a representative of the common law holders to:

(i)    nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose; and

(ii)    include with the nomination the written consent of the body corporate;

(b)    secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions;

(c)    thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body corporate is to perform the functions.

Functions where not trustee

(3)    After becoming a registered native title body corporate, the body must perform:

(a)    any functions given to it as a registered native title body corporate under particular provisions of this Act; and

(b)    any functions given to it under the regulations (see section 58).

49    I am satisfied that the Corporation is a prescribed body corporate within section 57(2). The regulation is the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). Five conditions must be satisfied for a corporation to be determined as a prescribed body corporate.

50    It must be an Aboriginal and Torres Strait Islander corporation (reg 4(1)). Here the Corporation was incorporated and is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). It is taken to be registered for the purpose of being the subject of a section 56 or 57 determination for the reasons which follow.

51    The purpose of being a registered native title body corporate must be set out in the objects of the corporation (reg 4(2)(a)). The necessary objects are included in the Rules of the Corporation.

52    All members of the corporation must be persons who at the time of the determination are included, or are proposed to be included, in the native title determination as the native title holders (reg 4(2)(b)). The rules of the Corporation provide that membership is only open to natural persons over the age of 18 years and who fall within the definition of “Nywaigi People”.

53    All members of the Corporation at the time of making the section 57 determination and at all times after the section 57 determination is made, are persons who have native title rights and interests in relation to the determination area (reg 4(2)(b) and (c)). Only those people who fall within the description of Nywaigi People as set out in the Rules, and mirrored in the definition of the common law holders in the Proposed Determination, will be persons eligible to be members, and thus, the Corporation will at all times, including post-determination, have members that have native title rights and interests in the area to which the determination relates.

54    The corporation must meet the Indigeneity requirement under section 29-5 of the Corporations (Aboriginal and Torres Strait Islander) Act. The rules of the Corporation provide that membership is confined to Aboriginal persons who fall within the description of Nywaigi People set out in the rules. The rules do not provide for any other class of persons to be members.

55    The written and executed document constituting the common law holders’ nomination and the Corporation’s consent forms part of the Applicant’s material: see [12(p)] above.

56    I determine that the Corporation is to perform the functions mentioned in section 57(3).

Conclusion and orders

57    Today, the Court makes orders by consent which recognise that the native title claimants have, and always have had, native title rights and interests in land and waters within the area the subject of the Application.

58    The Court congratulates the parties in this proceeding for having finalised proposed orders by consent.

Associate:    

Dated:    20 April 2018

SCHEDULE OF PARTIES