FEDERAL COURT OF AUSTRALIA
Hoolihan on behalf of the Gugu Badhun People #2 v State of Queensland [2012] FCA 800
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IN THE FEDERAL COURT OF AUSTRALIA |
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DATE OF ORDER: |
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WHERE MADE: |
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”).
2. Each party to the proceeding is to bear its own costs.
BY CONSENT THE COURT DETERMINES THAT:
1. The determination area is the land and waters described in Schedule 1 and Schedule 2, and shown on the determination plan attached to Schedule 4 (the “Determination Area”).
2. Native title exists in relation to the Determination Area.
3. The native title is held by the Gugu Badhun People described in Schedule 5 (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 Schedule 1 and shown on the determination plan in Schedule 4 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 for personal, domestic and non-commercial communal purposes; 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 Schedule 2 and shown on the determination plan in Schedule 4 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) hold meetings on 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) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(k) be buried and bury native title holders within the area.
6. The native title rights and interests are subject to and exercisable in accordance with:
(a) the Laws of the State and the Commonwealth;
(b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) the terms and conditions of the agreements referred to in paragraph 2 of Schedule 6.
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 rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 6 (the “Other Interests”).
10. The relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests described in Schedule 6 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) 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. The native title is not held in trust.
12. The Gugu Badhun Aboriginal Corporation (ICN 7719), 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(2) of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s 57(2) and s 57 (3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
13. 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; and
(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); and
“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).
SCHEDULE 1 – Areas in the Determination Area where exclusive native title rights and interests exist
The land and waters comprised of the lots listed below, excluding the areas described in Schedule 3:
No. Description
1. Lot 14 on CP903953
2. Lot 1 on MPH25076
3. Lot 13 on USL42211
4. Lot 26 on USL45578
5. Lot 27 on USL45578
6. Lot 28 on USL45578
7. Lot 29 on USL45578
8. Lot 22 on SP185817
9. Lot 53 on USL48011
10. Lot 1 on WU1
11. Lot 6 on WU16
12. Lot 41 on AP9356
13. Lot 5 on WU5
SCHEDULE 2 – Areas in the Determination Area where non-exclusive native rights and interests title exist
The land and waters comprised of the lots listed below, excluding the areas described in Schedule 3:
No. Description
1. That part of Lot 1 on AP19251 as shown on the plan in Schedule 4
2. That part of Lot 268 on FTY1271 as shown on the plan in Schedule 4
3. That part of Lot 227 on OL208 as shown on the plan in Schedule 4
4. That part of Lot 531 on OL404 as shown on the plan in Schedule 4
5. That part of Lot 4 on SP232791 and an area identified as road and delineated by stations 34a-80a-34-34a, and stations 34b-83-84-70a-86…89-90-91…95-96-97-98-99-99a-96a-95a…91a-90a-89a…85a-84a-83a-34b on SP232791 (formerly Part of Lot 4 on GU55 as shown on the plan in Schedule 4)
6. That part of Lot 547 on SP242570 as shown on the plan in Schedule 4
7. That part of Lot 4594 on PH1586 as shown on the plan in Schedule 4
8. That part of Lot 4844 on PH1679 as shown on the plan in Schedule 4
9. That part of Lot 5281 on PH1808 as shown on the plan in Schedule 4
10. That part of Lot 3990 on PH2255 as shown on the plan in Schedule 4
11. That part of Lot 501 on SP232789 and an area identified as road and delineated by stations 21-21a…18a…14a…B-A…14…18…21, stations D-C-12a…9a…3a…1a-1…3…9…12-D, and stations 22a-22…26…29…33b-40-33a…29a…26a…22a on SP232789 (formerly Part of Lot 501 on SP112186 formerly Part of Lot 4836 on PH1512 as shown on the plan in Schedule 4)
12. Lot 8 on WG334
13. That part of Lot 3 on WU32 as shown on the plan in Schedule 4
14. That part of Lot 2 on WU33 as shown on the plan in Schedule 4
15. Lot 3 on WU48
16. Lot 4 on WU52
17. Lot 3 on CLK34
18. That part of Lot 501 on CLK41 as shown on the plan in Schedule 4
19. That part of Lot 2 on K1241104 as shown on the plan in Schedule 4
20. That part of Lot 3 on K1241105 as shown on the plan in Schedule 4
21. Lot 4 on K1241106
22. That part of Lot 5203 on PH1063 as shown on the plan in Schedule 4
23. Lot 5138 on PH1348
24. That part of Lot 5233 of PH1356 as shown on the plan in Schedule 4
25. Lot 5234 on PH1357
26. Lot 3198 on PH2177
27. That part of Lot 5038 on PH261 as shown on the plan in Schedule 4
28. Lot 5126 on PH786
29. That part of Lot 537 on SP132224 as shown on the plan in Schedule 4
30. Lot 6 on WU50
31. That part of Lot 2 on SP205224 (formerly Part of Lot 7 on WU54) as shown on the plan in Schedule 4
32. Lot 9 on CLK23
33. That part of Lot 17 on SP137276 as shown on the plan in Schedule 4
34. That part of Lot 50 on SP143226 as shown on the plan in Schedule 4
35. That part of Lot 1 on SP149834 as shown on the plan in Schedule 4
36. Lot 2 on WU23
37. That part of Lot 59 on NPW935 as shown on the plan in Schedule 4
38. That part of Lot 18 on NPW936 as shown on the plan in Schedule 4
39. That part of 26 on NPW874 as shown on the plan in Schedule 4
40. Lot 159 on NPW886
41. Lot 9 on GU33
42. Lot 5 on K103526
43. Lot 46 on WU44
44. Lot 47 on WU46
45. Lot 4 on WU37
46. Lot 5 on CWL776
47. Lot 61 on WU46
48. Lot 72 on E4552
49. Lot 5 on WU10
50. Lot 3 on CLK22
51. That part of Lot 9 on WG269 as shown on the plan in Schedule 4
SCHEDULE 3 – Areas excluded from the Determination Area
For the avoidance of doubt, the areas described below are excluded from the Determination Area:
1. Those areas that are or were the subject of previous exclusive possession acts (as that expression is defined in the Native Title Act 1993 (Cth)):
(a) the land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth) is constructed, established or situated, and to which s 23B(7) and s 23C(2) of the Native Title Act 1993 (Cth) and /or s 23B(7) of the Native Title Act (Cth) 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 Native Title Act 1993.
(b) specifically and to avoid any doubt, the land and waters described in paragraph 1(a) above includes the whole of the land and waters described as:
(i) Lot 19 on CLK32; and
(ii) Lot 15 on CLK28.
2. Any land or waters within the boundaries of the following pastoral leases:
(a) Pastoral Lease TL221091 comprising Lot 17 on SP 137276, title reference 40043707;
(b) Preferential Pastoral Holding 24/5125 comprising Lot 6 on WU50 and known as Camel Creek;
(c) Term Lease 230131 comprising Lot 501 on CLK41 and known as Christmas Creek;
(d) Pastoral Holding 22/4594 comprising Lot 4594 on PH1596 and known as Conjuboy;
(e) Preferential Pastoral Holding 24/5233 comprising Lot 5233 on PH1356 and known as Craiglee North;
(f) Preferential Pastoral Holding 24/5234 comprising Lot 5234 on PH1357 and known as Craiglee South;
(g) Preferential Pastoral Holding 22/5038 comprising Lot 5038 on PH261 and known as Craigs Pocket;
(h) Pastoral Holding 24/4836 comprising Lot 501 on SP112186 and known as Eland;
(i) Pastoral Holding 24/547 comprising Lot 547 on SP242570 and known as Lucky Downs;
(j) Pastoral Holding 11/4844 comprising Lot 4844 on PH1679 and known as Mount Fullstop;
(k) Preferential Pastoral Holding 22/4984 comprising Lot 2 on K1241104, Lot 3 on K1241105 and Lot 4 on K1241106 and known as Glendhu (aka New Farm);
(l) Pastoral Holding 22/5281 comprising Lot 5281 on PH1808 and Occupation Licence 22/227 comprising Lot 227 on OL208 and known as Hopewell;
(m) Preferential Pastoral Holding 24/5138 comprising Lot 5138 on PH1348 and known as Redbank Creek;
(n) Pastoral Holding 22/593 comprising Lot 4 on GU55 and known as Valley of Lagoons;
(o) Preferential Pastoral Holding 22/3162 comprising Lot 3 on CLK34 and known as Jervoise;
(p) Pastoral Holding 24/4054 comprising Lot 4 on WU52 and known as Kallanda;
(q) Pastoral Holding 24/5433 comprising Lot 3 on WU48 and known as Kangaroo Hills;
(r) Preferential Pastoral Holding 22/5203 comprising Lot 5203 on PH1063 and known as Lamonds Lagoon;
(s) Preferential Pastoral Holding 24/5126 comprising Lot 5126 on PH786 and known as Lincoln Springs;
(t) Pastoral Holding 18/5287 comprising Lot 1 on SP132224 and known as Lynwater;
(u) Preferential Pastoral Holding 22/537 comprising Lot 537 on SP132224 and known as Meadowbank (aka New Farm);
(v) Pastoral Holding 24/5318 comprising Lot 2 on WU33 and known as Oak Hills;
(w) Preferential Pastoral Holding 24/3198 comprising Lot 3198 on PH2177 and known as Ryeburn;
(x) Preferential Pastoral Holding 24/3862 comprising Lot 7 on WU54 and known as Sea View;
(y) Term Lease 220131 comprising Lot 50 on SP143226 and known as Spring Creek (aka Lynwater)
on which any permanent improvement consisting of:
(i) a homestead, house, shed or other building;
(ii) a constructed dam or any other constructed stock watering points;
(iii) an airstrip; and
(iv) stock yards and trap yards,
has at the date of the determination, been constructed (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under the pastoral leases.
SCHEDULE 4 – Determination Area Plan 
SCHEDULE 5 – Native Title Holders
The Native Title Holders are the Gugu Badhun people, being the descendants of the following Aboriginal people:
(a) Bella, mother of Harry Goetz, Cissie McDowall, and Albert Brown;
(b) Lucy Shaw, mother of Richard Hoolihan, Mosley Dickman, and Jimmy Dickman;
(c) King Lava, father of Mariah Saddler;
(d) Tommy Cobbler, father of Nellie Rankin;
(e) Charlie Burdekin, father of Frank Burdekin, William Burdekin, Ernest Burdekin, Gertrude Burdekin, and Peter McDowell;
(f) Nancy Jordan, also known as Nancy Rose Lee and Nancy Ah Sam, wife of Harry Goetz;
(g) Nora Lee, also known as Laura and Laula, wife of Charlie Burdekin;
(h) Ceasar Murray;
(i) Minnie Tiger, also known as Big Minnie; and
(j) Skinny Minnie.
SCHEDULE 6 – 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 State of Queensland pursuant to any licence, permit or authority granted or issued pursuant to the Radio Communicators Act 1992 (Cth).
2. The rights and interests of the parties under the following agreements:
(a) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), the Wet Tropics Management Authority, and the State of Queensland, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 and executed by Ernie Hoolihan on 22 June 2012, Hazel Illin on 22 June 2012, Narda Kennedy on 22 June 2012, Harry Gertz on 25 June 2012, Elsie Thompson on 25 June 2012, the Gugu Badhun Aboriginal Corporation (ICN 7719) on 22 June 2012, the Wet Tropics Management Authority on 27 June 2012, and the State of Queensland on 10 July 2012 and 12 July 2012 (the Gugu Badhun People Protected Areas Indigenous Land Use Agreement (Body Corporate Agreement)), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(b) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Charters Towers Regional Council, Hinchinbrook Shire Council, Tablelands Regional Council and Townsville City Council, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 and executed by Ernie Hoolihan on 22 June 2012, Hazel Illin on 22 June 2012, Narda Kennedy on 22 June 2012, Harry Gertz on 25 June 2012, Elsie Thompson on 25 June 2012, the Gugu Badhun Aboriginal Corporation (ICN 7719) on 22 June 2012, Charters Towers Regional Council on 9 July 2012, Hinchinbrook Shire Council on 3 July 2012, Tablelands Regional Council on 9 July 2012 and Townsville City Council on 9 July 2012 (the Gugu Badhun People and Local Government Indigenous Land Use Agreement), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(c) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), and Ergon Energy Corporation Limited (ACN 087 646 062), which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 and executed by Ernie Hoolihan on 22 June 2012, Hazel Illin on 22 June 2012, Narda Kennedy on 22 June 2012, Harry Gertz on 25 June 2012, Elsie Thompson on 25 June 2012, the Gugu Badhun Aboriginal Corporation (ICN 7719) on 22 June 2012, and Ergon Energy Corporation Limited (ACN 087 646 062) on 4 July 2012, (the Ergon Energy/Gugu Badhun People Agreement), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(d) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719) and Australian Wildlife Conservancy (ACN 068 572 556)], which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 and executed Ernie Hoolihan on 22 June 2012, Hazel Illin on 22 June 2012, Narda Kennedy on 22 June 2012, Harry Gertz on 25 June 2012, Elsie Thompson on 25 June 2012, the Gugu Badhun Aboriginal Corporation (ICN 7719) on 22 June 2012, and Australian Wildlife Conservancy (ACN 068 572 556) on 25 June 2012 (the Australian Wildlife Conservancy/Gugu Badhun People Agreement), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(e) the agreement between the Applicant, Alma Elisabeth Gwyneth Atkinson and Keith Ronald Atkinson, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Camel Creek ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(f) the agreement between the Applicant, Henry James Atkinson and Susan Atkinson, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 and executed by the Applicant on (the Gugu Badhun/Eland and Lucky Downs ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(g) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Carolyn Jean Brabon and Graeme Richard Brabon, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/ Craiglee North and Craiglee South ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(h) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Gregory Colin Brown, Judith Margaret Brown, Glen Patrick Cameron and Laurel Jean Cameron which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Meadowbank (aka Kinrara) ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(i) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Rebecca Mary Burge and Richard Stewart Burge, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Lamonds Lagoon ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(j) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719) and Victor Gerald Collins, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Lynwater ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(k) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Don Arthur Condon, Lincoln John Condon, Neville Graham Condon and Rita Ellen Condon, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Conjuboy ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(l) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Garry Lawrence Core and Trevor Alan Core, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Mount Fullstop ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(m) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719) and Wayne William Crisp and Glenda Desley Crisp, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Oak Hills ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(n) the agreement between the Applicant the Gugu Badhun Aboriginal Corporation (ICN 7719) and Gregory Neil Jonsson, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Jervoise ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(o) the agreement between the Applicant the Gugu Badhun Aboriginal Corporation (ICN 7719) and Keough Holdings Pty Ltd (ACN 079 767 445), which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Spring Creek (Lynwater) ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(p) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Eugene John Phillip Matthews and Heather Jean Matthews, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Christmas Creek ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(q) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Edward John Marsterson, Ian James Marsterson, Joseph John Marsterson and Kenneth Edward Marsterson, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/ Craigs Pocket ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(r) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Rosemary Ann Milton and William Dale Milton, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Ryeburn and Sea View ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(s) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Dino Fiorino Penna and Norma Myrtle Penna, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Kangaroo Hills ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(t) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719) and George Wayne Shadforth and Joanne Shadforth, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Lincoln Springs ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(u) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719), Judith Elizabeth Sheahan, and Thomas Patrick Sheahan, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Hopewell, Redbank Creek and Valley of Lagoons ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(v) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719) and Michael John Toohey, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Glendhu (aka New Farm) ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
(w) the agreement between the Applicant, the Gugu Badhun Aboriginal Corporation (ICN 7719) and Lachlan Alexander Thomson and Penelope Ann Milton-Thomson, which was authorised by the native title claim group on 27 April 2012 and 16 June 2012 (the Gugu Badhun/Kallanda ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
3. The rights and interests of the Wet Tropics Management Authority pursuant to the Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and the Wet Tropics Management Plan 1998 (Qld) relating to the use and management of part of the Determination Area.
4. The rights and interests of the holders of any permits granted under the Wet Tropics Management Plan 1998 (Qld).
5. The rights and interests of the State of Queensland and the interests of any permittees, licensees or authorities pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of:
(a) Lot 26 on NPW874 (Undara Volcanic National Park);
(b) Lot 159 on NPW886 (Kinrara National Park);
(c) Lot 18 on NPW936 (Part of Girringun National Park);
(d) Lot 59 on NPW935 (Part of Paluma Range National Park); and
(e) Lot 1 on AP19251 (Part of Paluma State Forest).
6. The rights and interests of the holders of any permit, licence, lease, other authority, agreement or contract issued or made under the Forestry Act 1959 (Qld).
7. The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld), under the Petroleum Act 1923 (Qld) or the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
8. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under that Act.
9. The rights and interests of the holders of any licences, permits or allocations under the Water Act 2000 (Qld) and any relevant regulations or subordinate legislation made under that Act.
10. The rights and interests of Queensland Electricity Transmission Corporation Limited trading as Powerlink Queensland (ACN 078 849 233) as an electricity entity exercising statutory functions, powers or rights and as the owner and operator of electricity transmission facilities, and associated infrastructure situated upon the Determination Area, including but not limited to the right to enter upon the Determination Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with those facilities and infrastructure in accordance with the law.
11. The rights and interests of the State of Queensland, Charters Towers Regional Council, Etheridge Shire Council, Hinchinbrook Shire Council, Tablelands Regional Council and Townsville City Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access roads.
12. The rights and interests of Ergon Energy Corporation Limited (ACN 087 646 062):
(a) as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;
(b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld); and
(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 of the Determination;
(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,
13. The rights and interests of Telstra Corporation Limited (ACN 051 775 556):
(a) as the owner or operator of telecommunications facilities within the Determination Area;
(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
(i) to inspect land;
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and
(d) under any lease, licence, access agreement or easement relating to its telecommunication facilities in the Determination Area.
14. The rights and interests of the Australian Wildlife Conservancy under pastoral lease TL221091 comprising Lot 17 on SP 137276, title reference 40043707.
15. The rights and interests of Charters Towers Council including any rights the Council, its employees, agents or contractors have:
(a) under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within its local government area, as defined in the Local Government Act 2009 (Qld);
(b) as the:
(i) lessor under any leases which were entered into as at the date of the Determination;
(ii) grantor of any licences or other rights and interests which were granted as at the date of the Determination;
(iii) holder of any estate or interest in land, and as trustee of any reserves, that exist in the Determination Area as at the date of the Determination;
(c) as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area as at the date of the Determination, including but not limited to:
(i) dedicated roads operated by Council;
(ii) gravel pits operated by Council;
(iii) undedicated but constructed roads except for those not operated by Council;
(iv) water pipelines and other water supply infrastructure;
(v) drainage facilities; and
(vi) cemetery and cemetery related facilities; and
(d) to enter the land described in paragraph 15 to:
(i) exercise any of the rights and interests referred to in paragraph 15;
(ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph 15(c); and
(iii) undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management.
16. The rights and interests of Etheridge Shire Council, Hinchinbrook Shire Council, Tablelands Regional Council and Townsville City Council including any rights the Councils, their employees, agents or contractors have:
(a) under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within their respective local government areas, as defined in the Local Government Act 2009 (Qld);
(b) as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of the Determination; and
(c) to enter and exercise rights within the Determination Area in accordance with the Local Government Act 2009 (Qld).
17. The rights and interests of Keith Ronald Atkinson and Alma Elisabeth Gwyneth Atkinson under Preferential Pastoral Holding 24/5125 comprising Lot 6 on WU50 and known as Camel Creek.
18. The rights and interests of Eugene John Phillip Matthews and Heather Jean Matthews under Term Lease 230131 comprising Lot 501 on CLK41 and known as Christmas Creek.
19. The rights and interests of Don Arthur Rankine Condon, Rita Ellen Condon, Neville Graham Condon and Lincoln John Condon under Pastoral Holding 22/4594 comprising Lot 4594 on PH1596 and known as Conjuboy.
20. The rights and interests of Graeme Richard Brabon and Carolyn Jean Brabon under:
(a) Preferential Pastoral Holding 24/5233 comprising Lot 5233 on PH1356 and known as Craiglee North; and
(b) Preferential Pastoral Holding 24/5234 comprising Lot 5234 on PH1357 and known as Craiglee South.
21. The rights and interests of Edward John Marsterson, Kenneth Edward Marsterson, Joseph John Marsterson and Ian James Marsterson under Preferential Pastoral Holding 22/5038 comprising Lot 5038 on PH261 and known as Craigs Pocket.
22. The rights and interests of Henry James Atkinson and Susan Atkinson under:
(a) Pastoral Holding 24/4836 comprising Lot 501 on SP112186 and known as Eland; and
(b) Pastoral Holding 24/547 comprising Lot 547 on SP242570 and known as Lucky Downs.
23. The rights and interests of Garry Lawrence Core and Trevor Alan Core under Pastoral Holding 11/4844 comprising Lot 4844 on PH1679 and known as Mount Fullstop.
24. The rights and interests of Michael John Toohey under Preferential Pastoral Holding 22/4984 comprising Lot 2 on K1241104, Lot 3 on K1241105 and Lot 4 on K1241106 and known as Glendhu (aka New Farm).
25. The rights and interests of Thomas Patrick Sheahan and Judith Elizabeth Sheahan under:
(a) Pastoral Holding 22/5281 comprising Lot 5281 on PH1808 and Occupation Licence 22/227 comprising Lot 227 on OL208 and known as Hopewell;
(b) Preferential Pastoral Holding 24/5138 comprising Lot 5138 on PH1348 and known as Redbank Creek; and
(c) Pastoral Holding 22/593 comprising Lot 4 on GU55 and known as Valley of Lagoons.
26. The rights and interests of Gregory Neil Jonsson under Preferential Pastoral Holding 22/3162 comprising Lot 3 on CLK34 and known as Jervoise.
27. The rights and interests of Lachlan Alexander Thomson and Penelope Ann Milton-Thomson under Pastoral Holding 24/4054 comprising Lot 4 on WU52 and known as Kallanda.
28. The rights and interests of Dino Fiorino Penna and Norma Myrtle Penna under Pastoral Holding 24/5433 comprising Lot 3 on WU48 and known as Kangaroo Hills.
29. The rights and interests of Richard Stewart Burge and Rebecca Mary Burge under Preferential Pastoral Holding 22/5203 comprising Lot 5203 on PH1063 and known as Lamonds Lagoon.
30. The rights and interests of George Wayne Shadforth and Joanne Shadforth under Preferential Pastoral Holding 24/5126 comprising Lot 5126 on PH786 and known as Lincoln Springs.
31. The rights and interests of Victor Gerald Collins under Pastoral Holding 18/5287 comprising Lot 1 on SP132224 and known as Lynwater.
32. The rights and interests of Gregory Colin Brown, Judith Margaret Brown, Glen Patrick Cameron and Laurel Jean Cameron under Preferential Pastoral Holding 22/537 comprising Lot 537 on SP132224 and known as Meadowbank (aka New Farm).
33. The rights and interests of Wayne William Crisp and Glenda Desley Crisp under Pastoral Holding 24/5318 comprising Lot 2 on WU33 and known as Oak Hills.
34. The rights and interests of William Dale Milton and Rosemary Ann Milton under:
(a) Preferential Pastoral Holding 24/3198 comprising Lot 3198 on PH2177 and known as Ryeburn; and
(b) Preferential Pastoral Holding 24/3862 comprising Lot 7 on WU54 and known as Sea View.
35. The rights and interests of Keough Holdings Pty Ltd under Term Lease 220131 comprising Lot 50 on SP143226 and known as Spring Creek (aka Lynwater).
36. The rights and interests of Reedybrook Pastoral Co Pty Ltd under Permit to Occupy 209909 comprising Lot 5 on K103526.
37. The rights and interests of Raymond Victor Vains, Roselyn Elizabeth Vains, Mark Damien Olditch and Raeleen Mae Olditch under Term Lease 211860 comprising Lot 3 on CLK22).
38. The rights and interests of Ryan Bradley Jones and Sue-Ann Jones under Term Lease 219125 comprising Lot 2 on WU23.
39. 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 the Determination, any existing public access to, and enjoyment of, the following places in the Determination Area:
(a) waterways;
(b) beds and banks of waterways; and
(c) areas that were public places at the end of 31 December 1993.
40. The rights and interests of members of the public arising under the common law, including but not limited to the following:
(a) the public right to fish; and
(b) the public right to navigate.
41. Any other rights and interests held by the State of Queensland or Commonwealth of Australia, or by reason of the force and operation of the Laws of the State of Queensland and the Commonwealth of Australia.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
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QUEENSLAND DISTRICT REGISTRY |
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GENERAL DIVISION |
QUD 85 of 2005 |
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BETWEEN: |
ERNIE HOOLIHAN, HARRY GERTZ, HAZEL ILLIN, NARDA KENNEDY AND ELSIE THOMPSON ON BEHALF OF THE GUGU BADHUN PEOPLE #2 Applicant |
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AND: |
STATE OF QUEENSLAND First Respondent TOWNSVILLE CITY COUNCIL Second Respondent CHARTERS TOWERS REGIONAL COUNCIL Third Respondent TABLELANDS REGIONAL COUNCIL Fourth Respondent ETHERIDGE SHIRE COUNCIL Fifth Respondent HINCHINBROOK SHIRE COUNCIL Sixth Respondent ERGON ENERGY CORPORATION LIMITED Seventh Respondent TELSTRA CORPORATION LIMITED Eighth Respondent AUSTRALIAN WILDLIFE CONSERVANCY Ninth Respondent ALMA ELISABETH GWYNETH ATKINSON, HENRY JAMES ATKINSON, KEITH RONALD ATKINSON, SUSAN ATKINSON, CAROLYN JEAN BRABON, GRAEME RICHARD BRABON, GREGORY COLIN BROWN, JUDITH MARGARET BROWN, REBECCA MARY BURGE, RICHARD STEWART BURGE, GLEN PATRICK CAMERON, LAUREL JEAN CAMERON, DON ARTHUR CONDON, LINCOLN JOHN CONDON, NEVILLE GRAHAM CONDON, RITA ELLEN CONDON, GREGORY NEIL JONSSON, KEOUGH HOLDINGS PTY LTD, EDWARD JOHN MARSTERSON, IAN JAMES MARSTERSON, JOSEPH JOHN MARSTERSON, KENNETH EDWARD MARSTERSON, ROSEMARY ANN MILTON, WILLIAM DALE MILTON, DINO FIORINO PENNA, NORMA MYRTLE PENNA, REEDYBROOK PASTORAL COMPANY, JUDITH ELIZABETH SHEAHAN, THOMAS PATRICK SHEAHAN, RAYMOND VICTOR VAINS AND ROSELYN ELIZABETH VAINS Tenth - Fortieth Various Respective Pastoral Respondent |
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JUDGE: |
LOGAN J |
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DATE: |
1 AUGUST 2012 |
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PLACE: |
GREENVALE |
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 application encompasses land in the Upper Burdekin region of Far North Queensland, west to the Great Diving Range and north of Charters Towers. This application includes within it the town of Greenvale and the Valley of Lagoons.
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 determination.
5 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made by Mansfield J in King v Northern Territory of Australia [2011] FCA 582 (King) about the preamble to the Act. I am in complete agreement with His Honour’s observations. Those observations are just as apposite in the present case, where the parties promote by consensual resolution that it is appropriate for the Court to make a determination and related orders pursuant to s 87 of the Act. Mansfield J observed of the Act’s preamble:
[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.
6 A native title claim which lingers undetermined on a court list is an affront to our system of justice. There is no doubt that the Parliament expected that many, if not most, native title claims would be consensually resolved. Translating that expectation into reality in this matter has required active case management by the Court, especially via its registrars. It has also required careful attention by the applicant to the requirements for the proof of native title and a realistic appraisal both by them and by respondents of a claim’s prospects of success. In this the legal advisers to a party have a vital role to play. There is therefore every reason today for the Gugu Badhun people and the wider community to be grateful to Mr Martin Dore, Principal Legal Officer, North Queensland Land Council and his staff for the way in which these claims have now been brought to finality. In like fashion, the Crown Solicitor for Queensland and his staff are to be commended. While it falls to each respondent to a native title claim to take its own legal advice, there is no denying that the State plays a leadership role so far as respondents are concerned in the assessment of the merits of a claim. Such cases demand acute attention to model litigant obligations. The making of this determination following an agreement is also proof that those who have separately advised local government and public utilities have conspicuously discharged their professional obligations.
7 A native title claim can be fraught with the potential for creating tension and anxiety amongst those with private interests in land the subject of a native title claim, particularly pastoralists. Recognising this in the aftermath of Wik Peoples v Queensland (1996) 187 CLR 1, the Commonwealth Government made provision for legal aid to be furnished to such persons. The representation and advice thus made available, if responsibly undertaken, as it has been to my observation in these matters by Mr Boge of Thynne and Macartney, can and does do much to dispel the tensions and anxiety to which I have referred and to result in the efficient progress and consensual resolution of a native title claim. I very much doubt that such resolution, with all of the considerable savings in public money that entails, would be possible without the availability of such advice.
8 The applicant has filed the following documents principally relied upon in the proceeding:
(a) Dr Alison Pembroke, ‘Gugu Badhun Native Title Claim QUD85/2005 – Connection Report’ (“Connection Report”) dated December 2010 filed on 19 July 2012;
(b) Affidavit of Mr Frank Gertz sworn on 10 December 2010 and filed on 19 July 2012;
(c) Affidavit of Mr Frank Gertz sworn on 26 April 2012 and filed on 19 July 2012;
(d) Affidavit of Mr Harry Gertz sworn on 13 March 2005 and filed on 22 March 2005;
(e) Affidavit of Mr Harry Gertz sworn on 27 April 2012 and filed on 19 July 2012;
(f) Affidavit of Mr Harry Gertz sworn on 27 April 2012 and filed on 19 July 2012;
(g) Affidavit of Mrs Aisla Snider sworn on 22 May 2012 and filed on 19 July 2012;
(h) Affidavit of Mrs Aisla Snider sworn on 22 May 2012 and filed on 19 July 2012;
(i) Affidavit of Mr Ernest Hoolihan sworn on 27 April 2012 and filed on 19 July 2012;
(j) Affidavit of Mrs Flora Hoolihan sworn on 14 December 2010 and filed on 19 July 2012;
(k) Affidavit of Mrs Margaret Gertz sworn on 27 April 2012 and filed on 19 July 2012;
(l) Affidavit of Mrs Margaret Gertz sworn on 27 April 2012 and filed on 19 July 2012;
(m) Affidavit of Ms Narda Kennedy sworn on 22 June 2012 and filed on 19 July 2012;
(n) Affidavit of Mr Noel Gertz sworn on 27 April 2012 and filed on 19 July 2012;
(o) Affidavit of Mr Derek Hoolihan affirmed on 13 July 2012 and filed on 19 July 2012;
(p) Affidavit of Ms Hazel Illin sworn on 27 April 2012 and filed on 19 July 2012;
(q) Affidavit of Mrs Elsie Thompson worn on 27 April 2012 and filed on 19 July 2012;
(r) Amended native title determination application (Form 1), amended pursuant to orders made on 27 July 2012;
(s) Amended proposed orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 1 August 2012;
(t) Submissions satisfying s 57 of the Act filed on 17 July 2012;
(u) Amended outline of submissions in support of the proposed consent determination filed on 25 July 2012; and
(v) Notice of Nomination and Consent of the Prescribed Body Corporate filed on 17 July 2012.
SECTION 87 OF THE ACT
9 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))); and
(d) The Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)).
10 Having satisfied those criteria relevantly detailed, the Court must consider the making of orders and if it appears to the Court to be appropriate to do so pursuant to s 87(1A) of the Act. The Court may make a determination in accordance with s 87(2) or s 87(3) and, if relevant, s 87(5).
11 The necessary considerations pertaining to whether it is appropriate for me to exercise a discretionary power and to make the orders sought are aptly expressed by Reeves J in the decision of Nelson v Northern Territory of Australia (2010) 190 FCR 344. His Honour stated:
[7] The words in s 87(1A): “… if it appears to the Court to be appropriate to do so …” have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229 (“Munn”) at [26] and [28].
[8] In considering the effect of these words, it is important to identify what it is that s 87(1A) requires the Court to consider appropriate. The wording of the section makes it clear that the question for the Court is whether it is appropriate to make an order in the terms of the agreement reached between the parties. Therefore the central focus of the section is that agreement: Lovett v Victoria [2007] FCA 474 (“Lovett”) at [37]; Nangkiriny v Western Australia (2002) 117 FCR 6; [2002] FCA 660 at [8]; James v Western Australia [2002] FCA 1208 at [4]; Ward v Western Australia [2006] FCA 1848 at [9]; Cox v Western Australia [2007] FCA 588 at [12]; Brown v Western Australia [2007] FCA 1025 at [23]; Hughes v Western Australia [2007] FCA 365 at [9]; Kogolo v Western Australia [2007] FCA 1703 at [18] and Eringa v South Australia [2008] FCA 1370 (“Eringa”) at [33].
[9] As North J said in Lovett:
… 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 ….
(emphasis added)
[10] It follows that the critical issue is whether the existence of a free and informed agreement is founded in fact, not whether the matters dealt with in the agreement, specifically the existence of native title, are founded in fact. In Eringa, Lander J expressed it thus:
… the Court adopts a different approach to the task of deciding whether it is appropriate to enter a determination reached by agreement than it brings to the task of deciding whether native title should be recognised in a contested matter. In each case the definition of native title is the same. The Act requires the Court to set out details of the matters mentioned in s 225 in all determinations whether reached by agreement or contest. Although there needs to be some foundation upon which the Court can exercise its jurisdiction, in matters in which the parties have reached agreement on the terms of a determination the Court will have particular interest in whether the agreement has been freely entered into and on an informed basis …. If that question is answered in the affirmative, the Court will consider the fact that an agreement has been reached as weighing in favour of the making of a determination of native title …
(emphasis added)
[11] In other words, if the material filed by the parties in support of the consent determination establishes a free and informed agreement, the Court will infer the existence of the native title that is at the heart of that agreement. I have emphasised the word “informed” because the process the State respondent party follows to inform itself is critical to this issue. In Munn, Emmett J observed that the Court’s deliberations on an application under s 87:
… would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely.
(emphasis added)
12 By the operation of s 87(1A), it is relevant, as the applicant’s submissions reveal, that I direct consideration only to s 87(2) of the Act. Even so, 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].
SECTION 94A OF THE ACT
13 Section 87 of the Act necessarily directs attention to s 94A which 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.
14 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.
15 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 section 223 and section 225 to THE GUGU BADHUN SOCIETY
16 From the filed material mentioned previously it appears that the Aboriginal persons who spoke the Gugu Badhun language, a dialect comparable to that spoken by the Warrungu and Gudjal people and likely descended from one distinct language spoken in the Upper Burdekin area, used and occupied Gugu Badhun country prior to 1788 (the date of the assertion of British sovereignty).
17 It is also clear that the use of the Gugu Badhun language and acquisition and transfer of Gugu Badhun cultural knowledge have continued throughout the 20th Century. The Court is asked to infer that the Gugu Badhun people today are descended from the community of Gugu Badhun speaking people who used and occupied Gugu Badhun country prior to 1788. This is supported by historical material which locates the community of the Gugu Badhun people, including the apical ancestors, in the early days of European contact. In this proceeding, the earliest evidence of Aboriginal occupation of the claim area was recorded by explorer Ludwig Leichardt during his overland expedition from Moreton Bay to Port Essington, north of the present day city of Darwin. In May 1844 and documented in 1847 in a ‘Journal of an overland expedition in Australia, from Moreton Bay to Port Essington, a distance of upwards 3000 miles, during the years 1844 – 1845’ (London: T & W Boone), Leichardt observed, in Gugu Badhun country, the use and occupation of the country and its resources by its native inhabitants. I am satisfied that the totality of the historical material submitted establishes the basis for the finding that these people are descended from a pre-sovereignty community of Gugu Badhun ancestors.
18 The material also provides that the Gugu Badhun 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 Gugu Badhun 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 Gugu Badhun society.
19 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 Gugu Badhun people to the extent where those rights and interests and laws and customs are no longer observed.
20 Accordingly, it is appropriate to make the proposed orders which recognise:
(a) That the claim group comprises a society united in and 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
21 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 6 September 2006;
(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 order 1 and in Schedule 1 to 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.
22 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 Dr Alison Pembroke who was 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 5 of the determination 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.
23 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 s 56 and s 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 Gugu Badhun Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. As that body corporate was registered on 3 May 2012 it will also perform the functions mentioned in s 57(3) of the Act.
24 The Court notes that the body corporate has filed a Notice of Nomination and Consent of the Prescribed Body Corporate on 17 July 2012 which satisfies the requirements of s 57(2) of the Act.
25 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 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 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.
26 For the reasons given, the Determination is now made.
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I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. |
Associate:
