FEDERAL COURT OF AUSTRALIA

Miller on behalf of the Birriah People v State of Queensland (No 2) [2016] FCA 1434

ORDERS

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 87A 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.    The determination will take effect upon the agreement referred to in paragraph 1 of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.

3.    In the event that the agreement referred to in paragraph 2 above is 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.

4.    Each party to the proceeding is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

5.    The Determination Area is the land and waters described in Schedule 1, and depicted in the plan attached to Schedule 1.

6.    Native title exists in relation to that part of the Determination Area described in Part 1, Part A of Schedule 1.

7.    Native title does not exist in relation to that part of the Determination Area described in Part 2, Part A of Schedule 1.

8.    The native title is held by the Birriah People described in Schedule 3 (the “native title holders”).

9.    Subject to paragraphs 10, 11, and 12 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1, Part A of Schedule 1 are:

(a)    other than in relation to Water, the right 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;

(ii)    take and use the Natural Resources of the Water in the area; and

(iii)    take and use the Water of the area,

for personal, domestic and non-commercial communal purposes.

10.    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.

11.    There are no native title rights 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).

12.    The nature and extent of any other interests in relation to that part of the Determination Area described in Part 1, Part A of Schedule 1 are set out in Schedule 4.

13.    The relationship between the native title rights and interests described in paragraph 9 and the other interests described in Schedule 4 (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; and

(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.

DEFINITIONS AND INTERPRETATION

14.    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 any animal, plant, fish and bird life found on or in the Water of the Determination Area, that have traditionally been taken and used by the native title holders, but does not include animals that are the private personal property of another;

“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 DETERMINES THAT:

15.    Upon the determination taking effect:

(a)    the native title is held in trust;

(b)    the Birriah Aboriginal Corporation RNTBC ICN 8261, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(i)    be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(ii)    perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

Schedule 1 — DETERMINATION AREA

Part A – Description of Determination Area

The Determination Area comprises all the land and waters described in Parts 1 and 2 below, and depicted in the plan in Part B of Schedule 1, excluding the areas described in Schedule 2. To the extent of any inconsistency between the written descriptions in Part A and the areas shown on the plan in Part B, the written description prevails.

Part 1 — Exclusive Areas

All of the land and waters contained within Lot 3 on SP289533.

Part 2 — Areas within the Determination Area where native title does not exist

All of the land and waters contained within Lot 1 on SP289533 and Lot 2 on SP289533.

Part B – Plan of Determination Area

Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA

The land and waters described in Part 1, Part A of Schedule 1 do not include:

(a)    land or waters upon which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established, or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and/or s 21 of the Native Title (Queensland) Act 1993 (Qld) applies;

(b)    together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth),

on the basis that such areas are or were the subject of one or more previous exclusive possession acts, as defined in s 23B of the Native Title Act 1993 (Cth) (despite the fact that the areas, or parts of them, may have been subject to earlier acts which extinguished native title), and could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

Schedule 3 — NATIVE TITLE HOLDERS

(a)    The native title holders are the Birriah People. The Birriah People are the biological or adopted descendants of one or more of the following people:

(a)    Jinnie Tiers;

(b)    Kuburu, the father of Billy Lightning Banbari;

(c)    John Smallwood;

(d)    Rosie Schilling;

(e)    Peggy Barker;

(f)    Sambo Callaghan;

(g)    Tommy Morgan;

(h)    the mother of Lizzie Limburner;

(i)    Nellie Skeen or William (Billy) Skeen Snr;

(j)    Caroline Roger; or

(k)    Maggie or her husband Harry Shepherd (Snr).

Schedule 4 — 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 Birriah People and Castle Hill Exotics Pty Ltd Indigenous Land Use Agreement (area agreement) between Frank Fisher, Colin McLennan, Algon Walsh Jnr, David Miller, and Gracelyn Smallwood on their own behalf and on behalf of the Birriah People, the Birriah Aboriginal Corporation RNTBC ICN 8261, Castle Hill Exotics Pty Ltd ACN 009 855 190, and the State of Queensland, dated 9 November 2016.

2.    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 area described in Part 1, Part A of Schedule 1;

(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 area described in Part 1, Part A of Schedule 1 existing or entered into before the date on which these orders are made;

(ii)    rights to enter the area described in Part 1, Part A of Schedule 1 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 area described in Part 1, Part A of Schedule 1.

3.    Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

(b)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

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

REASONS FOR JUDGMENT

REEVES J:

1    Slightly more than 18½ years ago, on 2 April 1998, the Birriah People lodged a native title determination application (the Birriah application) with the National Native Title Tribunal. Following amendments to the Native Title Act 1993 (Cth) (the NTA) in 1998, that application became a proceeding in this Court. The application covered land and waters in north Queensland.

2    The Birriah application has been amended a number of times over the years. Most recently, on 21 January 2016, leave to amend was granted pursuant to s 66B of the NTA. As a consequence of that amendment, the Birriah native title claim group is now described as the descendants of Jinnie Tiers; Kuburu, the father of Billy Lightning Banbari; John Smallwood; Rosie Schilling; Peggy Barker; Sambo Callaghan; Tommy Morgan; the mother of Lizzie Limburner; Nellie Skeen or William (Billy) Skeen Snr; Caroline Roger; Maggie or her husband Harry Shepherd (Snr).

3    On 6 February 2015, this proceeding was divided into two parts: Birriah Part A and Birriah Part B. Birriah Part B comprised one parcel of land described as Lot 13 on MRY45 (Lot 13), while Birriah Part A comprised the balance of the land and waters within the external boundary of the claim area. This division was undertaken because a dispute affecting Lot 13 had arisen concerning the operation of s 47B of the NTA. The division of the proceeding therefore allowed Birriah Part A to proceed to a consent determination unhindered by the dispute with respect to Birriah Part B.

4    There are three remaining respondent parties to Birriah Part B: the State of Queensland, Ergon Energy Corporation Limited and Castle Hill Exotics Pty Ltd.

5    Birriah Part A was determined by Logan J on 23 March 2016 (Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271 (Birriah Part A). That determination was made under s 87A(1)(b) of the NTA because it related to a part, albeit the vast majority, of the area covered by the Birriah application. Since this determination relates to the remaining part of the area covered by the Birriah application, I consider it, too, must be made under the same provision.

6    In practical terms, this distinction between s 87A and s 87 of the NTA is of little significance in this matter. That is so because, while they use different terminology and apply to different circumstances – s 87 to the settlement of a part of a proceeding and s 87A to a settlement relating to a part of a claim area – the procedural and substantive conditions for the making of a consent determination in both provisions are essentially the same. For example, s 87(1)(b) requiring the terms of the agreement to be in writing and signed by or on behalf of the parties; s 87(1A) requiring the Court to consider whether it is appropriate to make the orders sought; and s 87(1)(c) requiring the Court to be satisfied that the proposed orders are within the power of the Court, are reflected in almost identical terms in ss 87A(1)(d), 87A(4)(b) and 87A(4)(a), respectively.

7    The dispute with respect to Birriah Part B proceeded to mediation in March 2016 and was resolved. Before describing the details of that resolution, it is necessary to briefly outline how that dispute arose.

8    Section 47B of the NTA provides:

When section applies

(1)    This section applies if:

(a)    a claimant application is made in relation to an area; and

(b)    when the application is made, the area is not:

(i)    covered by a freehold estate or a lease; or

(ii)    covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

(iii)    subject to a resumption process (see paragraph (5)(b)); and

(c)    when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

(2)    For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

Note:    The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

9    Birriah Part B previously comprised a Special Lease No. 11/49362 that was granted to Laurence Bruce Coutts and Susan Jane Coutts as tenants in common in equal shares for a term of 10 years commencing on 1 January 1988 and expiring on 31 December 1997. That lease covered the site of the Burdekin Wilderness Lodge which was located on the banks of the Burdekin Dam, within the claim area of the Birriah application. Subsequent to its expiry, a Permit to Occupy the same area was issued to DCJ Pty Ltd on 26 August 1998. That Permit was expressed to commence on 1 August 1998. In the meantime, the land in question had reverted to unallocated Crown land. This was its status as at the time the Birriah application was lodged with the National Native Title Tribunal on 2 April 1998 (see [1] above). Furthermore, the Birriah applicant claimed that, at that time, one or more members of the Birriah native title claim group occupied the area in accordance with s 47B(1)(c) above.

10    In summary, the mediated resolution to the dispute over Birriah Part B involved an agreement (the resolution agreement) between the Birriah applicant and the remaining three respondents in the Birriah application (see at [4] above) to the effect that:

(a)    s 47B of the NTA applied to Lot 13;

(b)    the Birriah native title claim group would authorise an Indigenous Land Use Agreement (ILUA) providing for the surrender of its native title rights and interests over certain parts of Lot 13 (the surrender area); and

(c)    the parties would seek a determination by consent from this Court:

(i)    recognising that exclusive native title existed in relation to Lot 13, but excluding the surrender area; and

(ii)    providing that native title does not exist in relation to the surrender area.

11    Attached to the s 87A agreement (see [13] below) is a plan showing Lot 13 divided into three lots. Of those three lots, Lot No 3 comprises the vast majority of the area shown on the plan. The surrender area mentioned above comprises Lots No 1 and 2. Lot No 2 is a small area in the south-east corner of the area shown on the plan and Lot No 1 is an access corridor leading from the Burdekin Falls Dam Road on the northern boundary of the plan area, across Lot No 3, to Lot No 2.

12    In accordance with the resolution agreement, the parties subsequently entered into an ILUA and that was lodged with the National Native Title Tribunal for registration on 11 November 2016. That ILUA is yet to be registered. In the unlikely event that it does not achieve registration, the resolution agreement contains certain provisions that will then come into effect. For example, Castle Hill Exotics Pty Ltd is permitted to withdraw the admission described in [10(a)] above.

13    The parties have now requested the Court to make a determination of native title under s 87 ([sic – 87A]: see [5] above) of the NTA in the terms of the agreement they have reached. A copy of that agreement was filed with the Court on 16 November 2016 (the s 87A agreement).

14    The power of the Court to give effect to the parties’ agreement is, as indicated by the title to the s 87A agreement, founded on s 87A of the NTA. That section sets out the various conditions which will trigger the jurisdiction of the Court in the event that the parties reach agreement on the terms of an order to resolve a proceeding where the agreement relates to a part of the claim area (s 87A(1)(b)). The first condition is that the notice period under s 66 of the NTA must have ended prior to the parties’ written agreement being filed with the Court (s 87A(1)(b)). The National Native Title Tribunal’s notification of the Birriah application was completed on 12 September 2001 and so that condition has been met.

15    Secondly, the agreement of the parties must relate to an area (the determination area) which is included in the area covered by the application (s 87A(1)(b)). As I have already observed above, in this instance the agreement of the parties relates to Part B of the Birriah application, and that part comprises the land and waters in Lot 13. Accordingly, that condition is also met. Thirdly, all of the parties described in s 87A(1)(c) must be parties to the agreement. That condition, too, is met because both the Birriah applicant on behalf of the Birriah native title claim group and the three remaining respondent parties (see at [4] above) are described as parties to the s 87A agreement. Fourthly, the terms of the agreement must be signed by or on behalf of those parties (s 87A(1)(d)). It is apparent from the s 87A agreement filed with the Court on 16 November 2016 that condition has also been met.

16    Having satisfied those matters, the next condition is that the Court must be satisfied that an order in the terms of the order sought, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). An order will be within the power of the Court if it complies with s 94A of the NTA, if the rights and interests included in the proposed determinations are recognisable by the common law of Australia and if there is no other determination in existence over the area the subject of the proposed determinations.

17    Section 94A requires the Court, in making a determination, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 outlines the content of a determination of native title as:

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 and 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.

(Emphasis in original; note omitted)

18    In his reasons for the decision on Birriah Part A, Logan J set out a detailed summary of the evidence that the Birriah applicant had advanced to establish that native title existed in the claim area (see Birriah Part A at [23]–[38]). Since the same evidence is relied upon with respect to Birriah B and it is a small part of the claim area surrounded by the balance of the claim area in Part A, it is unnecessary for me to do more than refer to, and rely upon, his Honour’s helpful analysis.

19    Having regard to that analysis and having examined the draft consent determination attached to the s 87A agreement, with one exception illuminated below, I am satisfied that each of the matters outlined in s 94A is properly articulated therein. I am also satisfied that there is no other determination of native title in existence over any part of the determination area. Finally, I am satisfied that the native title rights and interests of the Birriah People in the determination area are recognisable by the common law of Australia. The exception to which I have referred above is the following clause which was included in Schedule 4 to the s 87A agreement:

The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the Land Act 1994 (Qld).

20    That clause was, in my view, an unnecessary duplication of another clause in Schedule 4, as follows:

Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

(b)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

Since this duplication was unnecessary and could have led to confusion, I have not included the clause in [19] above in the determination orders I propose to make today.

21    As to the remaining subsections of s 87A, since all the parties to the Birriah Part B are parties to the s 87A agreement, the notice requirements of s 87A(3) and the objection provisions of s 87A(8) do not arise for consideration in this matter. As well, none of the parties has elected to file an agreed statement of facts so I do not need to concern myself with ss 87A(9) to 87A(12) inclusive.

22    The final condition the parties need to meet in order to have the Court make a consent determination of native title concerns the operation of s 87A(4)(b) of the NTA. That section requires the Court to be satisfied that it is appropriate to make a determination in terms of the parties’ agreement.

23    In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) (at [5]–[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining this question of “appropriateness” under s 87. For the reasons canvassed above (at [6]), in my view, the same factors apply equally to s 87A. It is not necessary for me to repeat all those observations here, it will suffice to set out the concluding summary as follows (at [14]):

It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation..; whether the terms of the proposed order are unambiguous and clear …; and whether the agreement has been preceded by a mediation process …

24    On this question, I have been assisted by the submissions filed by the Birriah applicant on 14 November 2016. Having regard to those submissions, I am satisfied that there exists a free and informed agreement between the parties. In reaching this conclusion, I have had particular regard to the fact that all parties have had the advantage of competent legal representation and to the fact that the proposed consent determination was preceded by a mediation and an intense process of case management conducted by a Deputy Registrar of this Court. It is also worth noting the observations of Logan J when answering the same question with respect to Birriah Part A (see Birriah Part A at [40]). Finally, I am satisfied that the terms of the proposed order are unambiguous and clear. I am therefore satisfied it is appropriate to make the draft determination attached to the s 87A agreement.

25    Pursuant to s 56(2) of the NTA, the Birriah applicant has nominated the Birriah Aboriginal Corporation RNTBC ICN 8261 (“the Corporation”) as the prescribed body corporate to hold the native title of the claimant group in trust following the making of this determination. That nomination is in writing and the Corporation has given its consent to it. I am therefore satisfied that the relevant requirements of the NTA and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.

26    I congratulate the Birriah People in achieving this negotiated agreement of the outstanding dispute in the Birriah application with the remaining respondents, particularly Castle Hill Exotics Pty Ltd. This determination will now resolve the whole of the Birriah application and allow the parties and the broader community to move to the next stage of their relationships with each other and with this land.

Associate:    

Dated:    29 November 2016