FEDERAL COURT OF AUSTRALIA

Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432

SUMMARY

LOGAN J

14 DECEMBER 2011

MAREEBA

SUMMARY

1    In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.

2    Via s 87 of the Native Title Act 1993 (Cth) (the Act), Parliament has facilitated and thereby encouraged the making of native title determinations by agreement. The present determinations are the result of such agreements.

3    In has been aptly observed that 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: see King v Northern Territory of Australia [2011] FCA 582 (Mansfield J).

4    More particularly, what the determinations recognise is 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. Those determinations recognise that the use of the Muluridji dialect and the transfer of Muluridji cultural knowledge have continued throughout the 20th Century and 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. They further recognise the Muluridji people have an identity and a connection to the land which is the subject of these determinations such that, under the Act, they continue to have native title in that land.

5    The native title holders are those Aboriginal People 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.

6    Agreements of the kind that have brought about today’s hearing and determinations 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 registrars 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 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.

7    On today of all occasions it is appropriate to conclude in this way. I acknowledge the persons on whose behalf the native title in the land the subject of these determinations is held, the Muluridji people.