FEDERAL COURT OF AUSTRALIA

Weribone on behalf of the Mandandanji People v State of Queensland [2018] FCA 247

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 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 proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

3.    The Determination Area is the land and waters described in the Schedule and depicted in the map attached to the Schedule. To the extent of any inconsistency between the written description and the map, the written description prevails.

4.    Native title does not exist in the Determination Area.

DEFINITIONS AND INTERPRETATION

5.    In this determination “land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth).

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

A.    Description of Determination Area

The determination area comprises all of the land and waters within the external boundary described below, and depicted on the map.

External Boundary

Commencing at Longitude 148.326183° East, Latitude 26.304873° South; and extending generally northerly and generally north-easterly to a point on the watershed between the Dawson River and Balonne River Sub Basin Drainage Areas and the ridgeline of the Great Dividing Range at Longitude 148.413946° East, Latitude 26.013949° South passing through the following coordinate points:

Then generally easterly along that watershed and ridgeline to Longitude 149.657530° East; then generally southerly passing east of Jackson to a point about 6.5 km south-westerly of Glenmorgan and west of Erringibba Creek at Longitude 149.639128° East, Latitude 27.297062° South passing through the following coordinate points:

Then generally south-westerly to a point on the centreline of Teelba Creek at Latitude 27.736673° South passing through the following coordinate points:

Then generally south-westerly along the centreline of that creek and generally westerly along the centreline of the Moonie River to its intersection with the centreline of Thomby Creek; then generally northerly and generally north-westerly along the centreline of that creek and the centreline of an unnamed creek to Longitude 148.945490° East, Latitude 27.823770° South; then generally north-westerly passing through Longitude 148.933516° East, Latitude 27.776011° South to the south-eastern corner of the northern severance Lot 18 on EG80; then north-westerly and generally westerly along the southern boundaries of that severance, southern and western boundaries of the northern severance Lot 6 on SP215322 to Latitude 27.642512° South, a point east of Warro Bridge and north of Bindle; then westerly to the centreline of the Balonne River at Latitude 27.641188° South; then generally southerly and generally south westerly and westerly along the centreline of that river and its eastern branch to the intersection with the centerline of the Maranoa River, a point in Lake Kajarabie (Beardmore Reservoir) at Longitude 148.618360°, East, Latitude 27.838250° South; then generally northerly, generally westerly and generally northwesterly along the centreline of the Maranoa River to Longitude 148.498211° East; then northwesterly to the eastern external boundary of the former Native Title Determination Application QUD6027/2001 Gunggari People #2 (as at 15 December 2011) at Longitude 148.497438° East, Latitude 27.791069° South; then generally north-westerly and generally northerly along that former external boundary, being the western bank of the Maranoa River to Latitude 27.555703° South, a point on the external boundary of Native Title Determination QUD548/2012 Gunggari People #3 (as determined by the Federal Court 5 December 2012); then generally north easterly and generally northerly along that external boundary back to the commencement point passing through the following coordinate points:

Data Reference and Source

•    External boundary based in part on spatial data sourced from the Commonwealth of Australia, NNTT March 2016.

•    Ridgeline of the Great Dividing Range based on Drainage Basin Sub-Area Queensland Data as at (19/04/2011) sourced from Department of Environment and Resource Management (Qld) September 2011.

•    Cadastral data sourced from Department of Natural Resources and Mines, (Qld) October 2015.

•    Where available watercourse boundaries were derived from Cadastral data or 1:250K Topographic Vector Data is © Commonwealth of Australia (Geoscience Australia) 2008.

Reference Datum

Geographical coordinates 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.

B    Map of Determination Area

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

REASONS FOR JUDGMENT

RARES J:

1    This application on behalf of the Mandandanji people for a determination of native title under s 225 of the Native Title Act 1993 (Cth) commenced on 6 November 2008. The applicant currently comprises twelve biological descendants of four apical ancestors: Combarngo Bill, Nellie Edwards, Mary Weribone and Weribone Jack Senior (namely, Vincent Anderson, Alexandra Combarngo, Alex Costa, Leigh Himstedt, Rodney Landers, Tracy Landers, Theresa Manns, Max McDonald, Neville Munn, Jude Saldanha, Leslie James Weribone and Wayne Weribone). The respondents are the State of Queensland, Balonne Shire Council, Maranoa Regional Council, Western Downs Regional Council, several energy supply and mining companies, and pastoralists.

2    On 21 February 2018, the applicant, the State and the other respondents signed an agreement, pursuant to s 87(1) of the Native Title Act that provided for the Court, to make a determination that no native title rights and interests exist over the claim area (the negative determination).

The Court’s jurisdiction and the statutory scheme

3    Relevantly, s 87 will apply if, at any stage of the proceedings after the end of the notification period prescribed in s 66 (which expired on 30 September 2009), the parties reach agreement on the terms of an order for the Court to make in relation to the proceedings, the agreement is in writing signed by the parties and filed with the Court and, the Court is satisfied, in accordance with s 87(1)(c), that an order in, or consistent with, those terms, would be within its power. Moreover, s 87(2) allows the Court to make such an order without a hearing.

4    The form of the order proposed in the agreement satisfies the requirement of s 94A of the Act that the determination set out details of the matters mentioned in s 225. Relevantly, s 225 provides that a determination of native title is a determination of whether or not native title exists in relation to a particular area of land and waters and, only if it does exist, sets out further details in relation to the nature and extent of the determination. Since the proposed determination is a negative one, it suffices that the determination identifies, as the proposed one does, the land and waters in the claim area and reflects that native title does not exist in relation to that area.

5    In CG v Western Australia (2016) 240 FCR 466, 483 [65]-[66], North, Mansfield, Jagot and Mortimer JJ (with whom Reeves J agreed at 487 [85]) held that the Court had power under the Act to make a negative determination of native title in appropriate circumstances if, and after careful consideration, it is satisfied on the balance of probabilities that no native title rights or interests exist in relation to the particular area. Their Honours dismissed an appeal challenging the primary judge’s negative determination arrived at after a final hearing in which the applicant had failed to establish its claim to a positive determination.

Factual background

6    This is the fourth proceeding in which persons who identify themselves as Mandandanji have sought a determination of native title in respect of some or all of the claim area. The first was filed on 12 September 1997 and was subsequently withdrawn, and the second, filed on 28 October 1997 ultimately, was dismissed. The third filed on 6 June 2001 also was dismissed. Each of those three claims covered almost all of the claim area in this proceeding. Jesse Land, one of the solicitors acting for the applicant, affirmed in his affidavit of 21 February 2018 that he had not been able to locate any application for the first of those 1997 claims. He said that the second of the 1997 claims identified the apical ancestors of the claim group as being Nellie Edwards, William Combarngo, Weribone Jack and Mary Jaylor. It is not clear whether Mary Jaylor was also known as Mary Weribone or was a different person. The only two apical ancestors for the third (2001) claim, were Weribone Jack (Snr) and William Combarngo.

7    There were also other claims by the Bidjara, Western Wakka Wakka and Barunggam peoples made in 1997, 1999 and 1999 that overlapped relatively small parts of the claim area in the west and the east. The Bidjara people’s claim was withdrawn in 1997. The Western Wakka Wakka people’s claim was struck out in 2007, while the Barunggam people’s claim was dismissed on 5 August 2008. There have also been nine claims in respect of areas that surround the claim area, some of which have resulted in determinations of native title.

8    I made case management orders on 18 December 2015 and 27 June 2016, to prepare the proceeding for a contested final hearing to commence in Roma on 5 June 2017. The parties, particularly the applicant and the State, prepared detailed evidence for that hearing. This evidence included:

    statements of evidence by 18 lay witnesses;

    expert anthropological reports filed by each of the applicant (Dr John Morton) and the State (Dr Sandra Pannell) that led to them making a joint report dated 9 November 2016;

    detailed tenure research by the State; and

    an agreed statement of facts dated 5 April 2017 filed pursuant to s 87(8).

9    The joint report disclosed that the experts disagreed about whether the apical ancestors and other claim group descriptors on which the applicant relied established that the claim group was descended from the persons who held native title rights and interests in relation to the land and waters in the claimed area, and whether the claim group acknowledged and observed the traditional laws and customs of those earlier inhabitants.

10    The agreed statement of facts identified that native title had been extinguished in all but about 5% or 6% of the claim area, or 485 of 9,350 parcels located wholly or partially within it. Those 485 parcels had a total land area of about 115,000 hectares.

11    In her affidavit affirmed on 24 May 2017 the applicant’s solicitor, Wati Qalotaki said that she received advice from senior counsel for the applicant on 3 May 2017. He had been briefed to review and advise upon the totality of the evidence that the applicant had filed, including Dr Morton’s reports.

12    On 9 May 2017, Ms Qalotaki provided advice to members of the applicant about the evidence and options for disposition of the proceeding. The applicant instructed her at that meeting that the applicant did not wish to proceed to the contested final hearing and sought, instead, the present outcome.

13    On 20 May 2017, the native title claim group met with Ms Qalotaki at the Explorers Inn at Roma. The meeting confirmed that the applicant should not proceed with its application and, instead, should seek the present consent determination that native title does not exist over the claim area. Ms Qalotaki explained that the applicant had instructed her to proceed on this course both before and after the claim group meeting.

14    Peter Hutchison is the acting director, claim resolution of Aboriginal and Torres Strait Islander Land Services in the Department of Natural Resources, Mines and Energy, the lead agency of the State that deals with native title matters. He said in his affidavit of 21 February 2018 that the State had briefed junior counsel, to assess, having regard to the requirements of s 223(1) of the Act, the applicants’ witnesses’ statements of evidence and the expert evidence as these were filed. By late April 2017, the State had also briefed senior counsel with the material and he, junior counsel, Dr Pannell, Mr Hutchison and others in his team, assessed and reviewed the whole of the evidence that had been filed for the purposes of the trial.

15    Mr Hutchison said that the State received a letter dated 11 May 2017 from Ms Qalotaki. That revealed that the applicant’s senior counsel had advised that, taking account of the whole of the evidence, including that recently obtained, the claim had only limited prospects of success and, when considered with the very limited portions of the claim area where native title could possibly be recognised, those prospects were insufficient to justify proceeding to what would doubtless be a lengthy and expensive contested hearing.

16    Following the State’s receipt of this letter and the 20 May 2017 meeting of the claim group, Mr Hutchison said that the State agreed to vacating the orders for the trial and to negotiate towards an agreement pursuant to s 87 of the Act under which the parties would seek a negative determination.

Is the proposed determination appropriate?

17    Experienced senior and junior counsel for each of the applicant and the State made detailed written submissions in support of the proposed consent negative determination. I have considered those submissions and am satisfied that they have addressed a proper basis on which the Court may act under s 87 of the Native Title Act.

18    The State has a particularly significant role to play in proceedings under ss 87 and 87A (which applies to consent determinations over part of a claim area) because of its position as an institution of government that has responsibility for protecting the public interest: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at 115 [28]-[30] per Emmett J. The discretion created by s 87(2) to make an order in, or consistent with, the terms of that agreed by the parties, must be exercised judicially, on the basis that it must appear to the Court that it is appropriate to do so, as s 87(1A) provides.

19    There can be no standard or expected terms or conditions in the negotiation of agreements under ss 87 and 87A of the Act. Nor does s 87(1A) impose any precondition beyond that the agreement, under which the parties seek that the Court make orders for a determination of native title, be one that the Court considers “appropriate”. The Court must make such an evaluation of the s 87 agreement having regard to the subject-matter, scope and purpose of the Act: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ.

20    A relevant consideration in assessing the appropriateness of making a consent determination under s 87 is the overarching purpose of the civil practice and procedure provisions as provided in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Relevantly, s 37N(1) imposes a duty on the parties to conduct the proceeding, including negotiations for settlement, such as the present, that has culminated in an agreement under s 87 of the Act, in a way that is consistent with that overarching purpose: Oil Basins Ltd v Watson [2014] FCAFC 154 at [145] per Siopis, McKerracher and Barker JJ. I am satisfied that the parties have acted in accordance with s 37N in arriving at the s 87 agreement.

Consideration

21    The applicant and the State have given substantive consideration, with the benefit of advice from experienced senior counsel, solicitors and expert anthropologists, before taking the decision to seek the negative determination sought. That was done very soon before the trial was to commence and it was a decision that both the applicant and the native title claim group endorsed with the benefit of the advice of the applicants’ senior counsel and Ms Qalotaki. Thus, in May 2017, when the applicant and the claim group decided not to pursue a contested determination of native title they did so in the knowledge that, first, only a small portion of the claim area, consisting of disparate parcels, could be found to be land and waters in relation to which native title rights and interests could still exist, and, secondly, there was a significant difference in the experts’ evidence as to whether the applicant could prove that the claim group had any native title rights or interests at all.

22    The agreement for a negative determination appears to be appropriate on the material before me. I have had regard to the matters set out above and in particular to the significant differences between the expert anthropologists, the relatively small portions of scattered land and waters (albeit, in total over 115,000 hectares) in respect of which native title could be found to exist, the complexity, personal stress on many lay witnesses, the expense of a contested trial and the opinions of the applicant’s senior counsel as to the applicant’s prospects of success on the available evidence. I have also had regard to the fact that the State has agreed to the making of the negative determination.

23    As both the applicant’s and the State’s written submissions noted, the parties’ s 87 agreement is not underpinned by, or associated with, an indigenous land use agreement in favour of the claim group. Had there been such an outcome, it may have provided the claim group with a potential benefit, apart from the finality it will obtain by the resolution of this proceeding. However desirable the provision of such an indigenous land use agreement may seem in theory, the end result of the negotiations between the parties, who have had competent legal and other expert advice, is the s 87 agreement as it is. I am satisfied, that, having regard to the substantive disparity of the experts’ views in the joint report, there is nothing in the circumstances to suggest that it was necessary for there to be an indigenous land use agreement to underpin the parties’ agreement or that the terms of the s 87 agreement are other than an appropriate resolution.

24    There can be little doubt that the claim group will regard the negative determination as, to say the least, a real disappointment. One of the consequences of the interactions between Australia’s indigenous peoples and the early European settlers, together with their governments (Colonial, Federal and State), was the significant interruption of both the indigenous people’s presence on their traditional land and waters and their relationships within their original social structures. As each of those separations lengthened, the capacity of some indigenous societies to acknowledge, retain and observe their traditional laws and customs was sometimes weakened and, on occasion (as appears to have happened here), disrupted to the point where it has disappeared.

25    The sad reality appears to be that there is no longer any claim group that can prove that it has native title rights and interests in the originally very large claim area, or even the smaller scattered portions of over 115,000 hectares that could have been made the subject of a positive determination that native title rights and interests still existed. As I have explained above, not only is this the fourth application where a claim group identifying as Mandandanji has sought a determination of native title in relation to the claim area by reference to at least two consistent common apical ancestors, but there have been three partially overlapping and another nine adjacent claims or determinations during the last 20 years.

26    In that context, I am satisfied that it is unlikely that any other claim group exists that could make a case for a positive determination in respect of the limited portions in the claim area that have not experienced acts of extinguishment of native title. Accordingly, I am satisfied that there is no approved determination of native title or other extant application for such a determination in relation to all or any part of the claim area.

27    Moreover, I am satisfied that the negative determination that the parties have agreed is appropriate. That is because it will provide substantial certainty as to the land title status to all persons, including the State, with legal or equitable interests in the land and waters in the claim area. That certainty, as is the case in respect of all consent and final determinations of native title is, of course, subject to the possibility of a future application for a variation or revocation of that determination made under s 13(1)(b), if events subsequently occur that cause the determination no longer to be correct or the interests of justice require its variation or revocation (s 13(5)).

28    As a result of the orders that the parties have agreed ought to be made, all persons with interests in the land and waters in the claim area will now be substantially free of the risk of any further application for a determination of native title in relation to the claim area under the Native Title Act. There is a real public benefit in finality of litigation and in the Court giving the public and the parties certainty in respect of rights to, and interests in, real property.

Conclusion

29    For these reasons, I am satisfied that it is appropriate to make orders giving effect to the negative determination of native title that the parties have agreed under s 87.

Associate:

Dated:    7 March 2018

SCHEDULE OF PARTIES

QUD 366 OF 2008

BETWEEN:

ALEXANDRA COMBARNGO, LEIGH HIMSTEDT, VINCENT ANDERSON, WAYNE WERIBONE, TRACY LANDERS, THERESA MANNS, RODNEY LANDERS, NEVILLE MUNN, JUDE SALDANHA, MAX McDONALD, ALEX COSTA AND LESLIE JAMES WERIBONE ON BEHALF OF THE MANDANDANJI PEOPLE

Applicant

AND: