FEDERAL COURT OF AUSTRALIA
Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: | MAREEBA |
Being satisfied that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),
BY CONSENT THE COURT ORDERS THAT:
1. There be a determination of native title in the terms set out below (“the determination”).
BY CONSENT THE COURT DETERMINES THAT:
1. The determination area is the land and waters described in Schedule 1, and shown on the plans attached to Schedule 1 (the “Determination Area”).
2. Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.
3. The native title is held by the Muluridji People described in Schedule 2 (“the native title holders”).
4. Subject to paragraphs 6, 7 and 8 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are:
(a) other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and
(b) in relation to Water, the non-exclusive rights to:
(i) hunt, fish and gather from the Water of the area; and
(ii) take and use the Water of the area for personal, domestic and non-commercial communal purposes.
5. Subject to paragraphs 6, 7 and 8 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 are the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) camp on the area and, for that purpose, erect 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 and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) conduct ceremonies on the area;
(f) 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;
(g) teach on the area the physical and spiritual attributes of the area; and
(h) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
6. 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.
7. The native title rights and interests referred to in paragraphs 4(b) and 5 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
8. There are no native title rights and interests 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).
9. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3.
10. The relationship between the native title rights and interests described in paragraphs 4 and 5 and the other interests described in Schedule 3 (the “other interests”) is that:
(a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
(b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and
(c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
11. 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;
“Natural Resources” means:
(a) any animal, plant, fish and bird life found on or in the Determination Area; and
(b) any clays, soil, sand, gravel or rock 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;
(c) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
“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 FURTHER DETERMINES THAT:
12. Paragraphs 1-11 will take effect on the agreements referred to in paragraph 1 of Schedule 3 being registered on the Register of Indigenous Land Use Agreements.
13. Upon paragraphs 1-11 taking effect:
(a) The native title is not held in trust; and
(b) The Muluridji Tribal Aboriginal Corporation, ICN 7580, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of s 57 of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
14. In the event that the agreements referred to in paragraph 12 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.
15. Each party to the proceeding is to bear its own costs.
SCHEDULE 1 – DETERMINATION AREA
A. Description of Determination Area
The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, excluding any area of land and waters on which any public work as defined in s 253 of the Native Title Act 1993 (Cth) (the “NTA”) is constructed, established or situated, and to which ss 23B(7) and 23C(2) of the NTA and/or s 23B(7) of the NTA and s 21 of the Native Title (Queensland) Act 1993, applies, together with any adjacent land or waters in accordance with s 251D of the NTA.
Part 1 Exclusive Areas
All of the land and waters described in columns 1 and 2 of the following table and shown on the determination plan described in column 3 of the following table:
Area Description (at time of determination) | Area Description (at time of claim) | Lot on Determination Plan |
Lot 6 on SP189942* | Lot 6 on DA110 | Lot 3 on AP20084 |
Lot 219 on DA446 | Lot 219 on DA446 | Lot 13 on AP20084 |
Lot 112 on HG744* | Lot 112 on HG744 | Lot 16 on AP20084 |
Lot 28 on AP15768* | Lot 28 on NR1398 | Lot 12 on AP20084 |
Lot 220 on SP145565* Lot 41 on SP145565 *(PT) | Lot 220 on NR3842 | Lot 12 on AP20084 |
Lot 27 on AP12217* Lot 1 on AP12217* | Lot 27 on NR5903 | Lot 2 on AP20084 |
Lot 3334 on AP14372* | Lot 1 on RA3334 | Lot 12 on AP20084 |
Lot 27 on USL9056* | Lot 27 on USL9056 | Lot 8 on AP20084 |
Lot 2 on USL9104* | Lot 2 on USL9104 | Lot 12 on AP20084 |
Lot 31 on USL9104* | Lot 31 on USL9104 | Lot 12 on AP20084 |
Lot 2 on USL9106* | Lot 2 on USL9106 | Lot 9 on AP20084 |
Lot 8 on USL9166* | Lot 8 on USL9166 | Lot 14 on AP20084 |
Lot 207 on CP890506 | Lot 207 on CP890506 | Lot 17 on AP20084 |
‘*’ denotes areas to which s47, s 47A or 47B of the Native Title Act 1993 (Cth) applies.
Part 2 Non-Exclusive Areas
All of the land and waters described in columns 1 and 2 of the following table and shown on the determination plan described in column 3 of the following table:
Area Description (at time of determination) | Area Description (at time of claim) | Lot on Determination Plan |
Lot 56 on NPW767 (PT) | Lot 1252 on NPW508 (PT) | Lot 1 on AP20084 |
Lot 10 on CP851428 | Lot 10 on CP851428 | Lot 3 on AP20084 |
Lot 517 on SP171524 | Lot 517 on CP851523 | Lot 7 on AP20084 |
Lot 141 on CP903068 and Lot 142 on CP903068 | Lot 141 on DA326 | Lot 3 on AP20084 |
Lot 136 on DA384 and Lot 1 on PER7140 | Lot 136 on DA384 Lot 1 on PER7140 | Lot 3 on AP20084 |
Lot 130 on SP148615 | Lot 130 on HG552 | Lot 16 on AP20084 |
Lot 165 on HG622 | Lot 165 on HG622 | Lot 18 on AP20084 |
Lot 129 on HG646 | Lot 129 on HG646 | Lot 15 on AP20084 |
Lot 128 on HG665 | Lot 128 on HG665 | Lot 15 on AP20084 |
Lot 8 on M356131 | Lot 8 on M356131 | Lot 9 on AP20084 |
Lot 1 on M356165 | Lot 1 on M356165 | Lot 8 on AP20084 |
Lot 569 on M3568 | Lot 569 on M3568 | Lots 6, 8, 10 and 11 on AP20084 |
Lot 513 on NR6400 | Lot 513 on NR6400 | Lot 8 on AP20084 |
Lot 514 on NR6400 | Lot 514 on NR6400 | Lot 8 on AP20084 |
Lot 562 on NR6473 | Lot 562 on NR6473 | Lot 8 on AP20084 |
Lot 563 on NR6473 | Lot 563 on NR6473 | Lot 8 on AP20084 |
Lot 858 on NR7516 | Lot 858 on NR7516 | Lot 12 on AP20084 |
Lot 888 on NR7943 | Lot 888 on NR7943 | Lot 4 on AP20084 |
Lot 260 on SP146295 Lot 539 on SP146295 | Lot 539 on NR7944 | Lot 5 on AP20084 and Lot 3 on AP20084 |
Lot 34 on NR804428 (PT) | Lot 34 on NR804428 (PT) | Lot 8 on AP20084 |
Lot 561 on NR810260 | Lot 561 on NR810260 | Lot 5 on AP20084 |
Lot 158 on HG803020 | Lot 158 on HG803020 | Lot 19 on AP20084 |
Lot 165 on HG803020 | Lot 165 on HG803020 | Lot 19 on AP20084 |
B. Map of Determination Area
SCHEDULE 2 – NATIVE TITLE HOLDERS
The native title holders are those Aboriginal People:
(a) who are Muluridji People on the basis of descent from one of the following persons:
(i) Billy and Kitty;
(ii) Kitty;
(iii) George Baker;
(iv) Mick Sheppard;
(v) Mick Fraser/Brazier;
(vi) Annie Green; or
(vii) Dolly Hughes.
SCHEDULE 3 – 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 indigenous land use agreements:
(a) Clancy Baker, Ian Connolly, Keith Mathieson Jnr, Keith Mathieson Snr on their own behalf and on behalf of the Muluridji People, the Muluridji Tribal Aboriginal Corporation ICN 7580 and the State of Queensland as parties to the Muluridji Protected Areas ILUA dated 1 August 2011;
(b) Clancy Baker, Ian Connolly, Keith Mathieson Jnr, Keith Mathieson Snr on their own behalf and on behalf of the native title holders and the Tablelands Regional Council as parties to the Tablelands Regional Council ILUA dated 19 October 2011; and
(c) Clancy Baker, Ian Connolly, Keith Mathieson Jnr, Keith Mathieson Snr on their own behalf and on behalf of the native title holders and Ergon Energy Corporation Limited as parties to the Ergon Energy ILUA dated 21 July 2011.
2. The rights and interests of the Tablelands Regional Council under:
(a) the Local Government Act 2009 (Qld) for that part of the Determination Area within its Local Government Area, as defined in that Act, including:
(i) as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of this determination; and
(ii) to enter and exercise rights within the Determination Area in accordance with the Local Government Act 2009 (Qld).
3. The rights and interests of the Wildlife Conservancy of Tropical Queensland Limited (ACN 073 609 239) (formerly Mareeba Wetland Foundation Limited) and the Tablelands Regional Council as trustees of a Reserve for Natural Resource Management Purposes over Lot 142 on CP903068.
4. The rights and interests of the Wildlife Conservancy of Tropical Queensland Limited (ACN 073 609 239) (formerly Mareeba Wetland Foundation Limited) as the lessee under Lease Dealing No. 704322627 from the Tablelands Regional Council and the Wildlife Conservancy of Tropical Queensland Limited over part of Lot 142 on CP903068.
5. The rights and interests of the Tablelands Regional Council, the Wildlife Conservancy of Tropical Queensland Ltd (ACN 073 609 239) (formerly Mareeba Wetland Foundation Limited) and the State of Queensland in relation to the Determination Area as parties to the Mareeba Tropical Savanna and Wetland Reserve Nature Refuge Conservation Agreement dated 11 June 2009.
6. The rights and interests of Clancy Baker, Ian Connolly, Keith Mathieson Jnr, Keith Mathieson Snr on their own behalf and on behalf of the native title holders and the Wildlife Conservancy of Tropical Queensland Ltd (ACN 073 609 239) (formerly Mareeba Wetland Foundation Limited) as parties to the Use and Access Agreement dated 29 November 2011 over Lot 6 on SP189942.
7. The rights and interests of Ergon Energy Corporation Limited (ACN 087 646 062):-
(a) as 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.
8. The rights and interests of David Thomas McGrath, Evan David McGrath and Eve-Lyn Grace McGrath as the permittee under the permit to occupy for grazing purposes dated 1 November 1993, being title reference 17742026 comprising Lot 1 on Crown Plan PER7140 over Lot 136 on Crown Plan DA384.
9. The rights and interests of the holders of any licences, permits or allocations issued under the Water Act 2000 (Qld) as may be current at the date of this determination.
10. The rights and interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of part of the Determination Area.
11. The rights and interests of the holders of any leases, agreements, licenses, permits or authorities granted under the Nature Conservation Act 1992 (Qld) as may be current at the date of this determination.
12. The rights and interests of the holders of any permits, claims, licenses or leases granted under the Mineral Resources Act 1989 (Qld) as may be current at the date of this determination.
13. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld) as may be current at the date of this determination.
14. Any other rights and interests held by the State of Queensland or Commonwealth, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6035 of 2001 |
BETWEEN: | CLEM RILEY AND MERVYN RILEY ON BEHALF OF THE MULURIDJI PEOPLE # 2 Applicant |
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent ERGON ENERGY CORPORATION LIMITED Third Respondent |
JUDGE: | LOGAN J |
DATE OF ORDER: | 14 DECEMBER 2011 |
WHERE MADE: | MAREEBA |
Being satisfied that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),
BY CONSENT THE COURT ORDERS THAT:
1. There be a determination of native title in the terms set out below (“the determination”).
BY CONSENT THE COURT DETERMINES THAT:
1. The determination area is the land and waters described in Schedule 1, and shown on the plans attached to Schedule 1 (the “Determination Area”).
2. Native title exists in relation to that part of the Determination Area described in Schedule 1.
3. The native title is held by the Muluridji People described in Schedule 2 (“the native title holders”).
4. Subject to paragraphs 5, 6 and, 7 below the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 1 are the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) camp on the area and, for that purpose, erect 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 and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) conduct ceremonies on the area;
(f) 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;
(g) teach on the area the physical and spiritual attributes of the area; and
(h) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
5. 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.
6. The native title rights and interests referred to in paragraph 4 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
7. There are no native title rights and interests 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).
8. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3.
9. The relationship between the native title rights and interests described in paragraph 4 and the other interests described in Schedule 3 (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) 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.
10. 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;
“Natural Resources” means:
(a) any animal, plant, fish and bird life found on or in the Determination Area; and
(b) any clays, soil, sand, gravel or rock 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:
(c) animals that are the private personal property of another;
(d) crops that are the private personal property of another;
(e) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);
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 FURTHER DETERMINES THAT:
11. Paragraphs 1-10 will take effect on the agreements referred to in paragraph 1 of Schedule 3 being registered on the Register of Indigenous Land Use Agreements.
12. Upon paragraphs 1-10 taking effect:
(a) The native title is not held in trust; and
(b) The Muluridji Tribal Aboriginal Corporation, ICN 7580, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of s57 of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
13. In the event that the agreements referred to in paragraph 11 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.
14. Each party to the proceeding is to bear its own costs.
SCHEDULE 1 – DETERMINATION AREA
A. Description of Determination Area
The Determination Area comprises all of the land and waters described below, excluding any area of land and waters on which any public work as defined in s 253 of the Native Title Act 1993 (Cth) (the “NTA”) is constructed, established or situated, and to which ss 23B(7) and 23C(2) of the NTA and/or s 23B(7) of the NTA and s 21 of the Native Title (Queensland) Act 1993, applies, together with any adjacent land or waters in accordance with s 251D of the NTA.
Non-Exclusive Area
All of the land and waters described in columns 1 and 2 of the following table and shown on the determination plan described in column 3 of the following table:
Area Description (at time of determination) | Area Description (at time of claim) | Lot on Determination Plan |
Lot 4513 on Plan PH1727 (PT) | Lot 4513 on Plan PH1727 (PT) | Lot 2 on Plan AP20087 |
B. Map of Determination Area
SCHEDULE 2 – NATIVE TITLE HOLDERS
The native title holders are those Aboriginal People:
(a) who are Muluridji People on the basis of descent from one of the following persons:
(i) Billy and Kitty;
(ii) Kitty;
(iii) George Baker;
(iv) Mick Sheppard;
(v) Mick Fraser/Brazier;
(vi) Annie Green; or
(vii) Dolly Hughes.
SCHEDULE 3 – 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 indigenous land use agreements:
(a) Clancy Baker, Ian Connolly, Keith Mathieson Jnr, Keith Mathieson Snr on their own behalf and on behalf of the native title holders and the Tablelands Regional Council as parties to the Tablelands Regional Council ILUA dated 19 October 2011; and
(b) Clancy Baker, Ian Connolly, Keith Mathieson Jnr, Keith Mathieson Snr on their own behalf and on behalf of the native title holders and Ergon Energy Corporation Limited as parties to the Ergon Energy ILUA dated 21 July 2011.
2. The rights and interests of the Tablelands Regional Council under:
(a) the Local Government Act 2009 (Qld) for that part of the Determination Area within its Local Government Area, as defined in that Act, including:
(i) as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of this determination; and
(ii) to enter and exercise rights within the Determination Area in accordance with the Local Government Act 2009 (Qld).
3. The rights and interests of Ergon Energy Corporation Limited (ACN 087 646 062):-
(a) as owner and operator of “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 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
(ii) to inspect, maintain and manage any Works in the Determination Area.
4. The rights and interests of the holders of any licences, permits or allocations issued under the Water Act 2000 (Qld) as may be current at the date of this determination.
5. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld) as may be current at the date of this determination.
6. Any other rights and interests held by the State of Queensland or Commonwealth, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6208 of 1998 |
BETWEEN: | CLANCY BAKER, IAN CONNOLLY AND KEITH MATHIESON JNR ON BEHALF OF THE MULURIDJI PEOPLE Applicant
|
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent WILDLIFE CONSERVANCY OF TROPICAL QUEENSLAND LTD ACN 073 609 239 (FORMERLY MAREEBA WETLAND FOUNDATION LIMITED) Third Respondent ERGON ENERGY CORPORATION LIMITED Fourth Respondent DAVID THOMAS MCGRATH Fifth Respondent EVAN DAVID MCGRATH Sixth Respondent EVE-LYN GRACE MCGRATH Seventh Respondent
|
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | qud 6035 of 2001 |
BETWEEN: | CLEM RILEY AND MERVYN RILEY ON BEHALF OF THE MULURIDJI PEOPLE # 2 Applicant |
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent ERGON ENERGY CORPORATION LIMITED Third Respondent
|
JUDGE: | LOGAN J |
DATE: | 14 DECEMBER 2011 |
PLACE: | MAREEBA |
REASONS FOR JUDGMENT
1 The applications that are the subject of these proceedings are for the determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the land described in Schedule 1 to the proposed determinations.
2 The applications are being heard together as they are geographically proximate and entail consideration of materially the same anthropological evidence concerning the Muluridji People. They encompass land in the Tablelands Region of Far North Queensland within the Counties of Dagmar, Nares and Hodgkinson. Substantial parts of those applications also lie within the town of Mareeba, approximately 60 kilometres west of the city of Cairns.
3 One of the objectives of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in the amendments to s 87 of the Act by the Native Title Amendment Act 2009 (Cth).
4 The properties over which the proposed consent determination will be granted are described in more detail in the maps in Schedule 1 to the determinations.
5 In King v Northern Territory of Australia [2011] FCA 582 (King) Mansfield J made a number of observations about the preamble to the Act and s 87 of the Act. It is an agreement reached between the parties for the purposes of that section that is the occasion for the hearing today. I am in complete agreement not only with the substance of his Honour’s observations in King but also with the manner in which he expressed them. They are exactly apposite in the present case. I propose therefore to adopt them as my own in these reasons for judgment without further attribution. Because it governs the content of a native title determination, I shall also make reference to s 94A of the Act which, in turn, directs attention to the matters set out in s 225.
6 The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications have always been the traditional owners of the land. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement.
7 The applicant has filed the following documents in each of the proceedings (QUD6208/1998 and QUD6035/2001):
(a) Averill Ginn, Ray Wood, Muluridji Native Title Determination Application Connection Report, February 2005, Edited by Michael Southon (“Connection Report”) and filed on 2 December 2011;
(b) Dr John Burton, Muluridji Native Title Application Supplementary Report, 31 December 2008 (“Supplementary Report”) and filed on 2 December 2011;
(c) Dr John Burton, Native Title Determination Applications Muluridji People (QUD6208/98) AND Muluridji People #2 (QUD6035/01)-Summary of Connection Material, 31 January 2011 (“Executive Summary”) and filed on 2 December 2011;
(d) Affidavit of Mr Mervyn Riley sworn on 25 May 2011 and filed on 2 December 2011;
(e) Affidavit of Mrs Valma Green sworn on 25 May 2011 and filed on 2 December 2011;
(f) Proposed Orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 30 November 2011;
(g) Submissions satisfying s 57 of the Act, filed on 30 November 2011;
(h) Outline of submissions in Support of the Proposed Consent Determination, filed on 1 December 2011; and
(i) Notice of Nomination and Consent of the Prescribed Body Corporate filed on 1 December 2011.
SECTION 87 OF THE ACT
8 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where:
(a) The period specified in the notice given under s 66 of the Act has ended (s 87(1));
(b) There is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i));
(c) The terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b)));
(d) The Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and
(e) The Court considers that it would be appropriate to make the order sought (ss 87(1) and (2)).
9 The focus of the Court in considering whether the orders sought are appropriate under ss 87(1) and (2) is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J stated:
[36] The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
[37] In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.
10 As such, the Court is not required to make its own inquiry of the merits of the applicant’s claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. The Court may consider such evidence to determine whether the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [29]-[30].
11 In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated:
State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land.
SECTION 94A OF THE ACT
12 Section 94A of the Act requires that a native title determination must satisfy the requirements of s 225 of the Act. Section 225 provides:
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.
13 Section 223(i) of the Act defines ‘native title’ and ‘native title rights and interests’ as:
the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
14 In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ (with McHugh J agreeing) stated the relevant principles with respect to s 223 of the Act, at [46] to [55] and [80] to [83]:
(a) A traditional law or custom which is the source of native title rights and interests is one which has been passed from generation to generation of a society, usually by word of mouth and common practice.
(b) The origins of the law or custom from which native title rights and interests stem must be found in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of sovereignty by the British Crown – it is only those rules that are “traditional” laws and customs;
(c) That normative system must have a continuous existence and vitality since sovereignty.
(d) If that society ceases to exist as a group which acknowledges and observes those pre-sovereignty laws and customs, those laws and customs cease to have continued existence and vitality.
(e) Only native title rights or interests that existed at the time of the change in sovereignty will be recognised. However, some change to, or adaptation of, traditional laws or customs or some interruption in the enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim.
(f) In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional laws and customs at times earlier that those described in the evidence.
APpLICATION OF sECTIONS 223 and 225 to THE MULURIDJI SOCIETY
15 From the filed material mentioned previously it appears that the Aboriginal persons who spoke the Muluridji dialect of the Kuku Yalanji language used and occupied Muluridji country prior to 1788 (the date of the assertion of British sovereignty).
16 It is also clear that the use of the Muluridji dialect and the transfer of Muluridji cultural knowledge have continued throughout the 20th Century. The Court is asked to infer that the Muluridji people today are descended from the community of people who spoke the Muluridji dialect and used and occupied Muluridji country prior to 1788. This is supported by historical material which locates the community of the Muluridji people, including the apical ancestors, in the early days of European contact, in this case from the 1860s, and establishes the basis for the finding that they are descended from a pre-sovereignty community of Muluridji ancestors.
17 The material also provides that the Muluridji people have an identity and a connection to the land through the application of normative rules associated with dreaming stories and significant places. Through this connection with the land, the Muluridji people, as an organised society, possessed native title rights and interests in accordance with their observed and acknowledged traditional laws and customs. The material supports the intergenerational transfer of those laws and customs and support for the inference that they, and the rights and interests possessed by them, originated in a pre-sovereignty Muluridji society.
18 It is also apparent that while there has been some adaptation of laws and customs as a result of sustained European settlement, those changes have not affected the laws and customs of the Muluridji people to the extent where those rights and interests and laws and customs are no longer observed.
19 Accordingly, it is appropriate to make the proposed orders which recognise:
(a) That the claim group comprises a society united in any by their acknowledgement and observance of a body of accepted traditional laws and customs;
(b) That the present day body of accepted laws and customs of the society in essence is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances;
(c) That the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs; and
(d) That the claim group still possesses rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.
THE APPLICATION OF SECTION 87 TO THE CURRENT NATIVE TITLE APPLICATIONS
20 The requirements of s 87 of the Act have been satisfied in the present case. In particular:
(a) The period specified in the notice given under s 66 ended on 22 November 2000 in the QUD6208/1998 claim and on 7 May 2002 in the QUD6035/2001 claim (s 87(1));
(b) The parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i));
(c) The parties have recorded their agreement in those short minutes of consent (s 87(1)(b));
(d) An order in terms of or consistent with those short minutes would be within the Court’s power because:
(i) The Applications are valid and were made in accordance with s 61 of the Act;
(ii) The Applications are for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a));
The short minutes comply with s 94A and s 225 of the Act (s 87(1)(c)); and
(e) It is appropriate that the Court make the orders sought because:
(i) All parties are legally represented;
(ii) Searches of land tenure, mining and other relevant interests have been obtained to determine the extent of “other interests” within the proposed determination area and provide copies of those searches to all parties;
(iii) The Respondents have provided all parties with a list their interests in the land which affect native title;
(iv) The parties have agreed the nature and extent of interests in relation to the determination area and those interests are described in orders 9 and 10 of QUD6208/1998 application and order 9 of QUD 6035/2001 application and in Schedule 3 to each of the determinations;
(v) 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 Application which would otherwise require orders to be made under s 67(1) of the Act (s 87(1) and s 87(2));
(vi) The State of Queensland has played an active role in negotiating the consent determination. In participating in these negotiations, the State of Queensland, acting on behalf of the general community, having had regard to the Act’s requirements and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances.
21 The State’s assessment process has included the assessment of extensive material showing the connection of the claim group with the country the subject of the determination. That material included anthropological reports provided by Averill Ginn, Ray Wood and Dr John Burton who were engaged by the applicant and which addressed the native title assessment requirements of the State of Queensland’s Department of Environment and Resource Management. Ultimately, the parties reached agreement that the native title claim group named in Schedule 2 of the determinations and in the connection material are the persons who hold the claimed native title rights and interests in the determination area. As noted above, that primary material has been filed. In my view, it justifies the approach taken by the State and the other respondent parties.
22 Under s 55 of the Act, the Court is required, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by ss 56 and 57 of the Act. They respectively relate to holding the native title on trust and with the non-trust function of prescribed bodies corporate. The proposed determination provides that the native title is not to be held on trust. It provides for an Aboriginal corporation, the Muluridji Tribal Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. As that body corporate was registered on 5 July 2011 it will also perform the functions mentioned in s 57(3) of the Act.
23 The Court notes that the body corporate has filed a Notice of Nomination and Consent of the Prescribed Body Corporate on 1 December 2011 which satisfies the requirements of s 57(2) of the Act.
24 Finally, it is worth recording that agreements of the kind that have brought about today’s hearing and determination do not just happen. They involve co-operation by all of the parties in the administration of justice, careful attention by them and their advisers to the requirements of the Act in relation to the proof of native title, related effort in the gathering of relevant evidence and the ready making of concessions as to whether on the evidence native title can be proved. They also involve the regular review by the Court at regional directions hearings, and in the intervals in between by the Court’s registrar’s, to ensure that an application is both prosecuted with due diligence by an applicant and not unreasonably delayed by a respondent in its progress towards a hearing like today or, if needs be, a contested hearing. Ensuring that is important in any litigation but is especially so in a proceeding under the Act which serves a wider public interest recognised in the preamble and which, through the allocation of judicial and other court resources and via the provision of various forms of legal aid, involves a considerable investment of public money. The parties and their advisers are to be commended for the consensual resolution of this native title proceeding.
25 For the reasons given, the Determination is now made.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. |
Associate:
