FEDERAL COURT OF AUSTRALIA

Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8

THE COURT ORDERS THAT:

1.    The State of Queensland file and serve its proposed determination that native title does not exist in relation to the overlap area within 7 days.

2.    The other parties have leave to file and serve any submission they wish to make about the proposed determination within a further 7 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 6 December 2013 I published my principal reasons for judgment in relation to these matters (Wyman on behalf of the Bidjara People v Queensland (No 2) [2013] FCA 1229). I concluded that each of the applications claiming native title must be dismissed and made orders accordingly. At the request of the State of Queensland (the State) I stayed my orders pending the resolution of a further question the State sought to raise, being whether as a consequence of my conclusions I also ought to make a determination under s 225 of the Native Title Act 1993 (Cth) (the NTA) that native title does not exist in relation to the area identified in the principal reasons as the overlap area. These reasons for judgment concern this further question. These reasons should be read in conjunction with my principal reasons.

2    While I accept the State’s description of the relevant statutory provisions, the issue is ultimately one of discretion. It is true that the Court’s jurisdiction is to be exercised so as to ensure, where possible, all matters in controversy between parties are “completely and finally determined” (s 22 of the Federal Court of Australia Act 1976 (Cth)). It is also true that s 225 of the NTA expressly contemplates that a determination may be made that native title does not exist in relation to certain land. I accept also that negative determinations have been made where a claimant application has failed rather than the claimant application merely being dismissed. I further accept the State’s submission that the claims in the present matters failed after a trial on the merits by competing claim groups after a detailed examination of the evidence. I agree that this circumstance weighs in favour of the making of a determination as sought by the State.

3    Given the content of the submission on behalf of the Bidjara claimants, it is necessary to say that the fact that the Bidjara claimants were not legally represented and that the balance of the claim may lead to different conclusions about other land does not weigh against the State’s submission. This is because the balance of the claim is irrelevant. The determination the State seeks relates to the overlap area only. Nor do I give any weight to the submission for the Bidjara claimants about estoppel. Their claim, at least to the extent it relates to the overlap area, has been finally determined, subject only to appellate review. I also do not consider that material weight should be given to the submission for the Brown River claimants that a negative determination should not be made because of the potential impact on the self-perception and identification of the claimant group. As my principal reasons make clear, the conclusions reached and the dismissal of the claimant applications engage solely with the statutory construct created by the NTA and do not purport to say anything about the the self-perception and identification of any claimant group.

4    A factor which should be considered is the evidence which was available about the overlap area. The evidence disclosed the existence of other traditional societies at sovereignty in the vicinity of the overlap area (the Kongabula and Nguri in particular). However, it also disclosed that the Kongabula voluntarily had been absorbed into and become part of the Bidjara and the Bidjara had also taken over the country left by the Nguri. Another relevant matter is the fact that, although the claims had been on foot for many years, there were essentially only two claimant groups to the overlap area, being the Bidjara and the Karingbal (the Karingbal and Brown River claimants, for this purpose, being treated as the same group). No other group asserted a claim to any part of the overlap area. The evidence did not enable any inference to be drawn that any other group might have such a claim. To the contrary, as set out in the principal reasons at [528], the evidence supported the conclusions that:

under the normative systems of law and custom which applied in relation to the overlap area at sovereignty, Carnarvon Gorge and Carnarvon National Park were Bidjara country, with Carnarvon Gorge being recognised by the Bidjara as an area in which other tribes, including but probably not limited to the Karingbal, had rights to enter to carry out burials and associated rituals and to look after their burial sites, and rights to enter for the purpose of inter-tribal ceremonies. Otherwise I conclude that the overlap area excluding Carnarvon Gorge and Carnarvon National Park, at sovereignty, was Karingbal country.

5    As the State submitted, however, I also found that the claimants “do not possess rights and interests under traditional laws and customs which give them a connection with the land and waters of the overlap area, because the pre-sovereignty normative system of law and custom has not continued” (at [530]-[533] and [538]-[671]). These circumstances involve considerations different from those expressed by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31 at [4005]-[4007] in which his Honour contemplated that, on the evidence, alternative claimant applications might be conceivable.

6    Weighing up these considerations, I consider it appropriate in the circumstances of the present case that I make a determination under s 225 of the NTA that native title does not exist in relation to the overlap area. The State should be directed to provide the form of determination it seeks as soon as possible.

Associate:

Dated:    3 February 2014