FEDERAL COURT OF AUSTRALIA

Prior on behalf of the Juru (Cape Upstart) People v State of Queensland [2011] FCA 783

FEDERAL COURT OF AUSTRALIA

Prior on behalf of the Juru (Cape Upstart) People v State of Queensland [2011] FCA 783

CORRIGENDUM

1.    On the Orders and Reasons for Judgment page change “New South Wales District Registry” to read “Queensland District Registry”.

Associate:

Dated:    20 July 2011

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to file an amended application substantially in the form annexed to the affidavit of Ricardo Martinez sworn on 27 June 2011 with such further amendment as is necessary to remove the inserted text in schedule R(2) and attachment R and to insert that information (as to the position prior to certification by the representative body) into attachment T, on or before 11 July 2011.

2.    Leave be granted to the applicant to serve on or before 11 July 2011 the application so amended on each respondent or other party electronically rather than in hard copy form.

3.    If any applicant has not signed and delivered a copy of each indigenous land use agreement with the State of Queensland and Ergon Energy Corporation Limited on or before 14 July 2011, each such applicant shall file and serve not later than 15 July 2011 an affidavit explaining the reasons why he or she has not signed and delivered each such agreement.

4.    Order 5 made on 10 June 2011 be varied by extending the time for the applicant to file and serve:

(a)    the materials referred to in paragraphs 5(a), (b) and (c) to 8 July 2011;

(b)    its written submissions on matters other than relating to the prescribed body corporate to noon on 6 July 2011;

(c)    any submissions relating to the material necessary to satisfy the requirements of the Act as to the prescribed body corporate to 8 July 2011.

5.    The time for the applicant to file and serve its written submissions on matters other than the prescribed body corporate be extended to noon on 6 July 2011.

6.    Leave be granted to the State to file and serve any further written submissions on all matters on or before 13 July 2011.

7.    The State file and serve the signed s 87 agreement, or all relevant counterparts of such a signed agreement, on or before 18 July 2011, failing which the State is to cause the matter to be relisted forthwith.

8.    If the affidavit of the anthropologist in support of any factual matters and any opinion arrived at referred to in order 5(a) made on 10 June 2011 is made by Dr Sandra Pannell and:

(a)    she identifies that the exhibits to that affidavit comprise the documents exhibited to the affidavit of Martin Edwin Ellis DorÉ sworn on 28 June 2011 as MEED1 and MEED2; and

(b)    the applicant confirms that that is the position to each respondent;

the applicant be excused from serving a further copy of that material on any respondent on whom the applicant has already served the exhibits to Mr DorÉ’s affidavit.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    The applicants have applied to change the description of the people on whose behalf they make the claim for native title to be recognised under the Native Title Act 1993 (Cth). This application was first raised by notice of motion filed on 8 June 2011 and returned for hearing two days later before me. I then queried why the change of name of the group from “Birri-Gubba” to “Juru” should be made on the material that had previously been put before the Court, particularly, having regard to the initiation of these proceedings in 1998 in the name of the Birri-Gubba people.

The anthropological evidence

2    Subsequently, the applicants filed a detailed anthropological report by Dr Sandra Pannell. In it she traces in some detail the way in which members of the claim group have both described themselves and been described by others over the course of time.

3    Dr Pannell’s report demonstrates that in a wider geographical area than covered by the present application, an Aboriginal society, or cultural block known as “Birri-Gubba”, has been recognised as existing by both the indigenous and non-indigenous people of this nation. Importantly, Walter E Roth, the Chief Protector of Aboriginals, wrote a paper in 1910 in which he used the name “Yuro-Kappa” to describe a language in the Bowen area which is immediately to the south of Cape Upstart. Dr Pannell considered that there was a link between “Yuro” and later recorded usages of “Yuru” and “Juru”. She traced the connection of Aboriginal people who spoke the Birri-Gubba language to include persons who described themselves as “Yuru”. She also traced from a variety of sources, including research conducted by Norman Tindale over the period from the late 1930s to 1974, a number of interviews with persons who used the eponymous term “Juru” to locate the indigenous name of the people who formed a society at, among others, Cape Upstart. Indeed, following interviews he held with ancestors of the members of the current personal applicants, Mr Tindale wrote that:

“Juru tribe is at Upstart Bay, extending from the Burdekin River southeast to a line drawn from Bowen to Mount Pleasant. The Bogie River is their inland boundary.”

He drew a map which identified the Juru area as encompassing that geographic description.

4    Subsequently, some confusion developed among the descendents of those to whom Mr Tindale spoke about the appropriateness of their being identified as “Juru”, rather than, “Birri-Gubba” people. This confusion arose because the common Birri-Gubba language had been passed on to them without there having been any reference to “Juru”. Dr Pannell concluded that, nonetheless, once the applicants and members of the claim group had reviewed the historical records extending back to the early twentieth Century they increasingly used the term “Juru” to express both their connection to the Cape Upstart and Bowen areas and their collective identity in a number of local and regionally focussed contexts.

5    Dr Pannell also instanced some contemporaneous references by members of the claim group identifying themselves as being part of the Juru tribe. In particular, she referred to a senior, and now deceased, member of the claim group who had said in 1998, prior to the filing of the application, that Cape Upstart was the centre of the Juru tribe.

6    Dr Pannell concluded that the Juru tribe acknowledged and observed, in common with other people in the area, some of the laws and customs of other people who spoke the Birri language. She opined that what fundamentally united the Birri-Gubba people as a society was:

    their acknowledgement of their common language, Birri;

    their common acknowledgement of the territorial and social limits of that language and the people who speak it;

    their common acknowledgement and identification of the named groups or clans comprising that society; and

    their common self-identification as Birri-Gubba people.

She concluded that the people who formed the community or group claiming rights and interests over Cape Upstart were properly able to be identified as “Juru”. On the basis of this conclusion, Dr Pannell opined that the use of the description “Birri-Gubba” in the name of the people in the original application appeared to have been mistaken. This was because that name referred to the broader community or society, of which those who claim native title rights in respect of Cape Upstart formed a distinct subgroup, known as “Juru” or “Yuru”.

Consideration

7    Under s 225(a) of the Act, the Court must make a determination of who are the persons, or each group of persons, holding the common or group rights comprising the native title. Next, s 223(1) defines “native title” as meaning communal, group or individual rights and interests of, relevantly, Aboriginal peoples in relation to land or waters where, first, the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed by, relevantly, the Aboriginal peoples, secondly, by those laws and customs, those peoples have a connection with the land or waters and, thirdly, those rights and interests are recognised by the common law of Australia.

8    Thus, the Act contemplates that there will be situations that conform with the anthropological reality, in which communal, group or individual rights and interests can sometimes exist exclusively of, or exist within subcategories or, in effect, lesser included, subgroups, tribes or clans who share some, but not all, of the same traditional laws and customs.

9    I am satisfied by Dr Pannell’s report of her investigation into the aetiology of the use of the words “Birri-Gubba”, “Yuru” and “Juru”, that the more appropriate nomenclature for the people seeking to claim native title rights and interests in respect of the land at Cape Upstart, the subject of the application, is “Juru”. Accordingly, I will grant leave to make appropriate amendments to the application for that purpose.

Associate:

Dated:    15 July 2011