FEDERAL COURT OF AUSTRALIA

Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland [2016] FCA 1505

ORDERS

THE COURT NOTES THAT:

A.    The Applicant has brought Native Title Determination Application QUD 80 of 2005 (“the Application”) which relates to an area which includes the land and waters the subject of the proposed determination.

B.    On 18 March 2014, a determination that native title exists was made by consent by the Federal Court of Australia over part of the land and waters of the area covered by the Application.

C.    The parties to the Application that hold an interest in relation to the remainder of the land or waters of the area covered by the Application have asked the Court to make a consent order for a determination of native title over that area.

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.    The Applicant is given leave to discontinue that part of the Application which covers any area not included in this determination.

3.    The Applicant file and serve a notice of discontinuance in accordance with paragraph 2 above within seven days.

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 map attached to Schedule 1.

6.    Native title exists in relation to the Determination Area described in Parts 1, 2 and 3 of Schedule 1.

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

8.    Subject to paragraphs 11, 12 and 13 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are 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 and use 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)    be buried and bury native title holders within 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; and

(j)    light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

9.    Subject to paragraphs 11, 12 and 13 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 are the non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

(b)    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; and

(c)    teach on the area the physical and spiritual attributes of the area.

10.    Subject to paragraphs 11, 12 and 13 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 3 of Schedule 1 is the non-exclusive right to access, be present on, move about on and travel over the area.

11.    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.

12.    The native title rights and interests referred to in paragraphs 8, 9 and 10 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

13.    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).

14.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.

15.    The relationship between the native title rights and interests described in paragraphs 8, 9 and 10 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;

(b)    to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and

(c)    the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

DEFINITIONS AND INTERPRETATION

16.    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 lands and waters of the Determination Area; and

(b)    any clays, soil or rock found 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);

“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:

17.    The native title is not held in trust.

18.    The Ngrragoonda Aboriginal Corporation (ICN 7982), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned ins 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

Schedule 1 –– DETERMINATION AREA

A.    Description of Determination Area

The Determination Area comprises all of the land and waters described in Parts 1, 2 and 3 below, to the extent that they are within the external boundary described in Part 4 below, and depicted in the determination map, excluding the areas described in Schedule 2.

To the extent of any inconsistency, the written description set out in Parts 1, 2 and 3 prevails over the determination map.

Part 1 –– Non-Exclusive Rural Areas

All of the land and waters described in the following table and depicted in light blue on the determination map:

1    Where an area is depicted on more than one sheet, only the first sheet number is referenced.

Part 2 –– Non-Exclusive Urban Areas (Aboriginal land areas)

All of the land and waters described in the following table and depicted in yellow on the determination map:

2    Where an area is depicted on more than one sheet, only the first sheet number is referenced.

*    denotes areas to which ss 47A or 478 of the Native Title Act 1993 (Cth) apply

Part 3 –– Non-Exclusive Urban Areas

All of the land and waters described in the following table and depicted in tan on the determination map:

3    Where an area is depicted on more than one sheet, only the first sheet number is referenced.

*    denotes areas to which ss 47A or 478 of the Native Title Act 1993 (Cth) apply

Part 4 –– External Boundary Description

Commencing at a point north east of the town of Charters Towers on the centreline of the Burdekin River at Longitude 146.407413o East, also being a point on the north western boundary of native title determination QUD 6244 of 1998 Birriah People (QCD2016/001), and extending generally south westerly and generally westerly passing through the following coordinate points:

then westerly to a point on the eastern boundary of an un-named road reserve and the western boundary of the second most north easterly severance of Lot 6 on Plan SP146633 (the severance being immediately west of the Kennedy Developmental Road reserve) at Latitude 19.982842° South; then generally northerly along the eastern boundary of that road reserve and the Kennedy Developmental Road reserve to Latitude 19.694482° South; then generally north easterly and generally south easterly passing through the following coordinate points:

then south easterly to a point on the western boundary of native title determination QUD 6244 of 1998 Birriah People (QCD2016/001) at Longitude 146.614965o East, Latitude 19.846002o South; then generally south westerly along that native title determination boundary passing through the following coordinate points:

then south westerly back to the commencement point.

The determination does not cover any areas subject to:

    the land and waters subject to native title determination QUD 80 of 2005 Gudjala People #1 Part A as determined by the Federal Court on 18 March 2014;

    the land and waters subject to native title determination application QUD147 of 2006 Gudjala People #2 as accepted for registration on 30 June 2010; and

    the land and waters subject to native title determination QUD147 of 2006 Gudjala People #2 Part A as determined by the Federal Court on 18 March 2014.

Data reference and source

    Native title determination application QUD 6244 of 1998 Birriah People (QC1998/012) as accepted for registration on 14 August 2007.

    Mining tenement data sources from the Department of Natural Resources and Mines (October 2013), unless otherwise indicated.

    Cadastre data sourced from the Department of Natural Resources and Mines (August 2013).

Reference datum

Geographical coordinates have been provided by the National Native Title Tribunal Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94) in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.

Use of coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Prepared by Geospatial Services, National Native Title Tribunal (24 October 2013).

B.    Map of Determination Area

Schedule 2 –– AREAS NOT FORMING PART OF THE DETERMINATION AREA

The areas described below do not form part of the Determination Area.

1.    Land and waters within the external boundary, as described in Part 4 of Schedule 1, that at the time at which the native title determination application was made:

(a)    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 that extinguished native title); and

(b)    to which neither of ss 47A or 47B of the Native Title Act 1993 (Cth) applied;

do not form part of the Determination Area on the basis that they could not be claimed, in accordance with s 61A of the Native Title Act 1993 (Cth).

2.    Specifically, and to avoid any doubt, the land and waters described in (1) above include the acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and include, but are not limited to, the following areas:

4    Where an area is depicted on more than one sheet, only the first sheet number is referenced.

3.    The land and waters described in (1) above includes the 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, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth).

4.    Specifically, and to avoid any doubt, the areas described in (3) above include, but are not limited to, the whole of the land and waters described as:

5    Where an area is depicted on more than one sheet, only the first sheet number is referenced.

Schedule 3 –– NATIVE TITLE HOLDERS

The native title holders are the Gudjala People. The Gudjala People are the descendants of one or more of the following people:

(a)    Alice Anning (also known as Alice White) of Bluff Downs Station;

(b)    Cissy McGregor;

(c)    Maggie “Ton Ton” Thompson;

(d)    Topsy Hann; or

(e)    Zoe (mother of Hoya Siemon/Bowman).

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 following agreements:

(a)    Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People, the Ngrragoonda Aboriginal Corporation ICN 7982, Flinders Shire Council and Charters Towers Regional Council as parties to the Indigenous Land Use Agreement QI2014/031 entered on the Register of Indigenous Land Use Agreements on 3 October 2014; and

(b)    Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People and Ergon Energy Corporation Limited ACN 087 646 062 as parties to the Indigenous Land Use Agreement QI2013/082 entered on the Register of Indigenous Land Use Agreements on 24 April 2014.

2.    The rights and interests of Telstra Corporation Limited ACN 051 775 556:

(a)    as the owner or operator of telecommunications facilities installed 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 telecommunication facilities;

(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 telecommunication facilities in and in the vicinity of the Determination Area in performance of their duties; and

(d)    under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.

3.    The rights and interests of Ergon Energy Corporation 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);

(c)    created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:

(i)    rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made;

(ii)    rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and

(iii)    to inspect, maintain and manage any Works in the Determination Area.

4.    The rights and interests of the State of Queensland and the Charters Towers Regional Council and Flinders Shire 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 the roads.

5.    The rights and interests of Charters Towers Regional Council and Flinders Shire Council:

(a)    under their local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be their respective local government areas;

(b)    as the:

(i)    lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not;

(ii)    grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not;

(iii)    holder of any estate or interest in land, as trustee of any reserves, that exist in the Determination Area;

(c)    as the owner and operator of infrastructure, and those facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to:

(i)    undedicated but constructed roads except for those not operated by Council;

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(d)    to enter the land for the purposes described in paragraphs (a), (b) and (c) above by their employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in paragraph 5 above;

(ii)    inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph (c) above;

(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.

6.    The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld), including (but not limited to) those held by Citigold Corporation Limited ACN 060 397 177 and its related bodies corporate.

7.    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.

8.    To avoid any doubt paragraphs 7(a) and 7(b) include, so far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; and

(d)    areas that were public places at the end of 31 December 1993.

Schedule 5 –– EXERCISE OF NATIVE TITLE RIGHTS AND INTERESTS ON PASTORAL LEASES

The native title holders will not exercise the native title rights and interests referred to in paragraph 6 of the determination in respect of any land or waters on which permanent improvements consisting of:

(a)    a homestead, house, shed or other building;

(b)    an airstrip;

(c)    a constructed dam or any other constructed stock watering point, bore, turkey nest, squatters’ tank or other water storage facility; or

(d)    stock yards and trap yards,

have, at the date of the determination, been constructed (including any adjacent land or waters, the use of which is necessary for, or incidental to, the construction, establishment or use of the permanent improvements) in accordance with the rights of a lessee under, and within the boundaries of the following pastoral leases to the extent that they are within the external boundary described in Part 4 of Schedule 1:

1.    Term Lease No. 232615 comprising Lot 144 on DV569

2.    Term Lease No. 234325 comprising Lot 181 on GF808563 and commonly known as Lake View Holding

3.    Term Lease No. 236178 comprising Part of Lot 230 on DV757 and commonly known as Breddan Holding

4.    Term Lease No. 231447 comprising Lot 50 on DV307.

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

REASONS FOR JUDGMENT

REEVES J:

1    In 2005 and 2006, Ms Elizabeth Dodd, Mr Andrew (Smokey) Anderson, Ms Gloria Santo, Ms Christine Hero and Ms Priscilla Michelle Huen, for and on behalf of the Gudjala People filed two native title determination applications with this Court: QUD 80 of 2005 and QUD 147 of 2006 (the applications). Both applications related to various areas of land and waters in and around Charters Towers in north Queensland.

2    In 2013, during the course of case management by a Registrar of the Court, the parties agreed that, save for certain areas that were affected by the existence of military orders issued pursuant to reg 54 of the National Security (General) Regulations 1939 (Cth) (the military orders areas), both of the applications could proceed to a consent determination over those parts of the claim area where, it was agreed, native title could exist. The military orders areas were identified in an affidavit of Michael Paul Everitt filed by the State of Queensland on 22 November 2013.

3    On 27 November 2013, programming orders were made in each proceeding permitting all parts of the claim area, except the military orders areas (Gudjala Part A in each of the applications) to proceed to a consent determination in accordance with s 87A of the Native Title Act 1993 (Cth) (the NTA). On 18 March 2014, Gudjala Part A of each application was determined by Logan J (Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 3) [2014] FCA 231 (Dodd)).

4    The question of extinguishment affecting the military orders areas was finally determined by the High Court in State of Queensland v Congoo (2015) 256 CLR 239; [2015] HCA 17. Soon thereafter, negotiations commenced for a final determination with respect to the military orders areas in each application.

5    The Gudjala Applicant and the remaining respondent parties, the State of Queensland, Charters Towers Regional Council, Flinders Shire Council, Ergon Energy Corporation Limited, Citigold Corporation Limited, Great Mines Pty. Ltd and various pastoralists, have now informed the Court that they have reached agreement on the terms of orders that should be made to determine the balance of the two proceedings (the proposed orders). The terms of that agreement were filed with the Court on 8 November 2016 (the s 87A agreement – see [6] below). Accordingly, the parties have requested that the Court make a determination of native title under s 87 of the NTA in, or consistent with, the terms of the proposed orders.

6    While the parties have described their agreement as an agreement that has been made under s 87 of the NTA, in the circumstances of these two applications, I consider the determinations with respect to the remaining parts of the claim areas must be dealt with under s 87A. That is so because these determinations will relate to a part – the remainder – of the area covered by the two applications (see s 87A(1)(b)) and not to a part of the proceedings (see s 87(1)(a)(ii)).

7    In practical terms, this distinction between s 87A and s 87 of the NTA is of little significance in these two matters. That is so because, while those sections of the NTA 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 in an application – the procedural and substantive conditions for the making of a consent determination in both sections 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.

8    The power of the Court to give effect to the parties’ agreement is, in this instance, therefore 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 Gudjala #1 application was completed on 13 March 2006 and the Tribunal notification of the Gudjala #2 application was completed on 2 February 2011. Thus, that condition has been met.

9    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 the remaining parts of the two applications. 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 Gudjala Applicant on behalf of the Gudjala native title claim group and the remaining respondent parties (see at [5] 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 8 November 2016 that condition has also been met.

10    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.

11    Section 94A requires the Court, in making a determination of native title, 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.

12    The expressions “native title” and “native title rights and interests” are defined in s 223 of the NTA. I have examined the terms of the proposed orders and I am satisfied that each of the matters referred to in s 225 of the NTA are appropriately articulated therein. Further, I am satisfied that the native title rights and interests that are proposed to be recognised in the proposed orders are of the kind defined in s 223, that is they are supported by the evidentiary material filed by the Gudjala Applicant, including the extensive anthropological reports by Dr Anthony Redmond and the historical report by Ms Val Donovan, and are therefore capable of recognition by the common law of Australia. Finally, I note that there is no other determination of native title in existence over each of the areas that are the subject of the orders I will make.

13    As to the remaining subsections of s 87A, since all the parties to these two applications 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.

14    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.

15    In Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 (at [5]–[13]), I canvassed the authorities that identified the factors to which the Court will routinely have regard in determining this question of “appropriateness”. 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 …

See also the summary of the above matters set out in Pwerle v Northern Territory [2016] FCA 304 at [20] and the observations of Logan J in Dodd at [16]–[18].

16    In determining this question, first, I have been assisted by the outline of submissions filed by the Gudjala Applicant. Secondly, I have taken account of the review of the materials that were placed before the Court in Dodd to demonstrate that native title existed in Gudjala Part A (see Dodd at [23]–[33]). Since the areas in Gudjala Part A are geographically close to the military orders areas that are the subject of these determinations, I consider those materials can generally be translated to these claim areas. Thirdly, I take account of the fact that the s 87A agreement in this matter was reached after intensive case management on the part of a Registrar of this Court and throughout the proceedings, all the parties were represented by independent and competent lawyers. Finally, I consider the terms of the s 87A agreement which is filed with the Court are unambiguous and clear. I am therefore satisfied that the s 87A agreement of the parties was entered into on a free and informed basis.

17    Thus far, I have been addressing the native title related features of the proposed orders as raised by s 225(a) and s 225(b) of the NTA. It is convenient, next, to turn to, what I will describe as, the tenure-related issues raised by s 225(c) to s 225(e) inclusive. Those subsections are as follows:

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:

…

(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.

18    With respect to these tenure-related issues, I raised some concerns with the parties similar to those that I raised in Bar Barrum #5: see Kynuna on behalf of the Bar Barrum People #5 v State of Queensland [2016] FCA 1504 (Bar Barrum #5) at [38]–[46]. Subsequently, the parties provided an amended form of Schedules 2 and 4 to the proposed orders which:

(a)    deleted the reference to s 47 of the NTA in clause 1(b) of Schedule 2 in both matters;

(b)    deleted clause 7 from Gudjala #1 and clause 6 from Gudjala #2 of Schedule 4; and

(c)    amended clauses 7 and 8 of Gudjala #1 and clauses 6 and 7 of Gudjala #2 in Schedule 4.

19    Having regard to the apposite provisions of the NTA, the observations I made in Bar Barrum #5 about the streamlined approach to tenure assessments at [29]–[36] and for the reasons stated in Bar Barrum #5: at [37]–[41] in relation to [18(a)] above, noting that in these two applications the claimants were pursuing claims under ss 47A and 47B, but not under s 47 of the NTA; at [44] in relation to [18(b)] above; and at [45] in relation to [18(c)] above; I consider these amendments were appropriate to be included in these determination orders.

20    As with the Gudjala Part A determinations, the native title rights and interests the subject of these determinations are not to be held on trust. That brings into operation the provisions of s 57 of the NTA, specifically s 57(2). It provides:

If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3):

(a)    first, it must request a representative of the common law holders to:

(i)    nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose; and

(ii)    include with the nomination the written consent of the body corporate;

(b)    secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions;

(c)    thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body corporate is to perform the functions.

21    The determination under s 57(1) mentioned in this subsection is a determination under s 56 that the native title rights and interests are to be held in trust. On 3 August 2016, the Gudjala Applicant filed a Notice of Nomination and Consent of the Prescribed Body Corporate nominating the Ngrragoonda Aboriginal Corporation ICN 7982 (the Corporation) to be the Prescribed Body Corporate to perform the functions set out in s 57(3) of the NTA. I therefore determine that the Corporation is the body corporate that is to perform those functions.

22    For these reasons, I am satisfied that all of the conditions in s 87A of the NTA have been met and it is appropriate to make determinations of native title that are consistent with the terms of the proposed orders, as amended, without holding a hearing.

Associate:    

Dated:    13 December 2016

SCHEDULE OF PARTIES