FEDERAL COURT OF AUSTRALIA

Muriata on behalf of the Girramay People #2 v State of Queensland [2018] FCA 1120

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.    The determination will take effect upon the agreements referred to in paragraphs 1(d) to (f) of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.

3.    In the event that the agreements referred to in paragraph 2 are 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 proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

5.    The Determination Area is the land and waters described in Schedule 1A, and depicted in the map attached to Schedule 1B. To the extent of any inconsistency between the description of the Determination Area in Schedule 1A and the map in Schedule 1B, the description of the Determination Area prevails.

6.    Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1A.

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

8.    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 of Schedule 1A are:

(a)    other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b)    in relation to Water, the non-exclusive rights to:

(i)    hunt, fish and gather from the Water of the area;

(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.

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 2 of Schedule 1A are the non-exclusive rights to:

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

(b)    camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;

(c)    hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;

(d)    take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

(e)    take and use the Water of the area for personal, domestic and non-commercial communal purposes;

(f)    conduct ceremonies on the area;

(g)    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;

(j)    hold meetings on the area; and

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

10.    The native title rights and interests are subject to and exercisable in accordance with:

(a)    the Laws of the State and the Commonwealth;

(b)    the traditional laws acknowledged and traditional customs observed by the native title holders; and

(c)    the terms and conditions of the agreements referred to in paragraph 1 of Schedule 4.

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

12.    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).

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

14.    The relationship between the native title rights and interests described in paragraphs 8 and 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;

(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

15.    In this determination, unless the contrary intention appears:

“High Water Mark” means the ordinary high-water mark at spring tides;

“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;

“Local Government Act” has the meaning in the Local Government Act 2009 (Qld);

“Local Government Area” has the meaning in the Local Government Act 2009 (Qld);

“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, sand, gravel 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);

“Reserve” means a reserve dedicated or taken to be a reserve under the Land Act 1994 (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;

(c)    water from an underground water source; and

(d)    tidal water.

Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

THE COURT DETERMINES THAT:

16.    Upon the determination taking effect:

(a)    The native title is held in trust;

(b)    The Girramay People Aboriginal Corporation (ICN: 4739), 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

A.    Description of Determination Area

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

Part 1 — Exclusive Areas, depicted in dark blue on the map

All of the land and waters described in column 1 of the following table and shown on the determination plan described in column 2 of the following table:

# denotes areas to which s 47A of the Native Title Act 1993 (Cth) apply

* denotes areas to which s 47B of the Native Title Act 1993 (Cth) apply

Part 2 — Non-Exclusive Areas, depicted in light blue on the map

All of the land and waters described in column 1 of the following table and shown on the determination plan described in column 2 of the following table:

Part 3 — External Boundary Description

Commencing at the intersection of the High Water Mark and the centreline bank Five Mile Creek and extending generally south westerly along the centreline of that creek and an unnamed creek to its source at approximately Longitude 146.017867 East, Latitude 18.355085 South; then south westerly to the intersection of the Herbert River 100K river basin boundary at Longitude 146.013522 East; then generally north westerly and again generally westerly along that river basin boundary to, Longitude 145.816391 East, Latitude 18.293854 South; then westerly to the source of an unnamed creek at Longitude 145.813980 East, Latitude 18.292870 South; then generally north westerly generally south westerly, generally westerly and again generally north westerly along the centrelines of that creek, Yamamie Creek and the Herbert River to the centreline of Blencoe Creek; then generally northerly and generally north easterly along that centreline and the centreline of an unnamed creek to Longitude 145.656280 East (Latitude 18.130650 South); then generally north easterly passing through the following coordinate points:

Then north easterly to the intersection of the centreline of an unnamed creek and the Murray River at Longitude 145.851919 East, Latitude 18.016160 South; then generally easterly, generally south easterly, generally north easterly, generally easterly and generally southerly along the centreline of the northern channel of the Murray River to its mouth, being the boundary of native title determination application QUD308/2014 Gulngay People (QC2014/002); then generally southerly along the High Water Mark, crossing the mouths of any waterways between the seaward extremities of each of the opposite banks of each such waterway back to the commencement point.

Exclusions

The external boundary description excludes native title determination QUD6240/1998 Girramay People (QCD2009/004) as determined by the Federal Court on 10 December 2009.

Note:

Data Reference and source

Reference datum

Geographical coordinates have been provided by the NNTT 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.

B.    Map of Determination Area

Schedule 2

AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters are excluded from the Determination Area.

Part 1 — Excluded as PEPAs

1.    Those land and waters within the External Boundary described in Part 3 of Schedule 1A, which at the time the native title determination application was made:

(a)    were the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth); and

(b)    to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied at the time of the native title determination application;

are excluded from the Determination Area as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

2.    The determination area does not include land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is constructed, established, or situated, and to which 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).

Part 2 – Excluded by ILUA

1.    Lot 23 on SP126363, being an area where native title is extinguished pursuant to Abraham Muriata on his own behalf and on behalf of the Girramay People, Girramay People Aboriginal Corporation, Cassowary Coast Regional Council and State of Queensland ILUA, National Native Title Tribunal reference number Q12009/067, registered on 25 May 2010.

Schedule 3

NATIVE TITLE HOLDERS

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

(a)    Charles Williams;

(b)    Bella Williams (Yurbil);

(c)    Rosie Williams (Djarrmay) (aka Rosie Runaway);

(d)    Clara Williams (aka Clara Boogal);

(e)    Clarke Kennedy (Blencoe);

(f)    Jimmy Beeron (Yalbiri);

(g)    Jimmy Bugal (Nganygarru);

(h)    Jimmy Henry (Manidjunayi);

(i)    Jimmy Wallaby (“Billycan”) and his wife Maggie (Ridjar);

(j)    Walter Cardwell (aka Simpson) (aka Blackman) (Djubarriny);

(k)    Tommy Dickman (Dubulmanu) (aka Tommy Digman);

(l)    Louisa Balli, the wife of Tommy Dickman (Dubulamanu) aka Tommy Digman;

(m)    One Arm Jack (Manguburur);

(n)    Cissy (Ganabulan);

(o)    Claire (mother of Lily Murray nee Wade);

(p)    Billy and his wife Jenny (including Charlie Clark Kennedy);

(q)    Polly Wyle(s);

(r)    Tommy Djingadjinga (Budalayiny);

(s)    Charlie Nolan (lbirri);

(t)    Charlie Nolan’s mothers sister Ngawu (Marnie);

(u)    Jimmy Jacobs (Rindin);

(v)    Toby McAvoy;

(w)    Johnny Dallachy;

(x)    Billy Murray (Walguy aka Walguyi) and Nellie Murray (Mudjunin);

(y)    Frank McLean (aka Frank Barry) (Gandigurrungu) and his wife Nellie; or

(z)    Mailman.

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)    the agreement between Abraham Muriata and Claude Frank Beeron on their own behalf and on behalf of the Girramay People and the Cassowary Coast Regional Council (the Girramay Cassowary Coast Regional Council Area ILUA Ql2009/064) registered on 25 May 2010;

(b)    the agreement between Abraham Muriata and Claude Frank Beeron on their own behalf and on behalf of the Girramay People and Ergon Energy Corporation Limited ACN 087 646 062 (Ql2009/065 - Ergon Energy and Girramay ILUA) registered on 27 May 2010;

(c)    the agreement between Abraham Muriata and Claude Frank Beeron on their own behalf and on behalf of the Girramay People and the Cassowary Coast Regional Council (Ql2009/067, Abraham Muriata on his own behalf and on behalf of the Girramay People, Girramay People Aboriginal Corporation, Cassowary Coast Regional Council and State of Queensland) registered on 25 May 2010;

(d)    the agreement between Abraham Muriata and Claude Frank Beeron on their own behalf and on behalf of the Girramay People and the State of Queensland, which was authorised by the native title claim group on 10 May 2018 and executed by Abraham Muriata and Claude Frank Beeron on 20 June 2018 and the State of Queensland on 4 June 2018 (the Girramay Tenure Resolution ILUA);

(e)    the agreement between Abraham Muriata and Claude Frank Beeron on their own behalf and on behalf of the Girramay People and the Tablelands Regional Council, which was authorised by the native title claim group on 10 May 2018 and executed by Abraham Muriata and Claude Frank Beeron on 20 June 2018 and the Tablelands Regional Council on 28 June 2018 (the Tablelands Regional Council Girramay People #2 Indigenous Land use (Area) Agreement); and

(f)    the agreement between Abraham Muriata and Claude Frank Beeron on their own behalf and on behalf of the Girramay People and the Cassowary Coast Regional Council, which was authorised by the native title claim group on 10 May 2018 and executed by Abraham Muriata and Claude Frank Beeron on 20 June 2018 and the Cassowary Coast Regional Council on 18 June 2018 (the Girramay People #2 and Cassowary Coast Regional Council ILUA).

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, occupy 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 telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and

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

3.    The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062:

(a)    as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;

(b)    as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);

(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 in Reserves, the rights and interests of the trustees of those Reserves and of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

5.    The rights and interests of the Tablelands Regional Council and the Cassowary Coast Regional Council as the local governments for that part of the Determination Area within their respective Local Government Areas, including:

(a)    their powers, functions, responsibilities and jurisdiction under a Local Government Act;

(b)    their rights and interests under any interest in land or waters within the Determination Area including under any lease, license, access agreement, easement or reserve in the Determination Area;

(c)    the rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owners and operators of infrastructure, structures, earthworks , access works, facilities and other improvements within the Determination Area;

(d)    the rights under any agreements between the local governments and third parties which relate to land or water in the Determination Area; and

(e)    the rights of their employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paragraphs (a) to (d).

6.    The rights and interest of the James Cook University as holder of permit to occupy PER5379, title reference 17686127, granted under the Land Act 1994 (Qld) comprising that part of Lot 3 on Plan CWL3513 described as Lot A on PER5379.

7.    The rights and interests of members of the public arising under the common law, including but not limited to any subsisting public right to fish.

8.    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.

9.    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

RANGIAH J:

1    The applicant in the Girramay People #2 native title claimant application seeks a determination of native title over land and waters pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the Act) on behalf of the Girramay People. The claim area covers approximately 946.3 km2 encompassing the Mulga Guyurru (Murray Falls) area near Cardwell in Far North Queensland.

2    The parties agree that the Court should determine that the Girramay People are the holders of native title in the area covered by the application.

The Native Title Act

3    The Act was enacted for the purpose of protecting and recognising native title, to establish ways in which future dealings in relation to native title should proceed, to set standards for those dealings and to establish a mechanism for determining native title claims.

4    An objective of the Act is the resolution of claims for the recognition of native title by agreement. That objective has been enhanced by amendments to s 87 of the Act brought about by the Native Title Amendment Act 2009 (Cth). It is consistent with the objects of the Act that the parties have agreed to the terms of orders to be made by consent pursuant to s 87 of the Act.

5    In its preamble, the Act recognises on behalf of all people of Australia that the Aboriginal peoples of Australia inhabited the country for many years prior to European settlement and that the Aboriginal peoples were progressively dispossessed of their lands. It records that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed and to facilitate recognition by our shared legal system of native title rights and interests in land.

6    The Court is asked to make a determination that native title exists in the land and waters claimed and is held by the Girramay People. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is merely recognising what exists and what existed well before European settlement.

The agreement reached between the parties

7    The application was filed on 21 August 2015. The parties to the application have reached an agreement as to the terms of a determination and the form of the orders appropriate to recognise native title rights and interests held by the Girramay People. The parties ask the Court to make orders under s 87 of the Act in accordance with the terms agreed between the parties.

8    On 10 December 2009, Dowsett J made a consent determination in favour of the Girramay People in respect of 4,795 km2 of land and waters adjacent to the present claim area: Girramay People v State of Queensland [2009] FCA 1450. The Court ordered, consistently with the terms agreed by the parties, that the Girramay People were entitled to non-exclusive use and enjoyment of land and waters, in accordance with their traditional laws and customs. The parties agreed that non-exclusive native title rights and interests held by the Girramay People to use and enjoy the land and waters should be recognised. The native title is held on trust by the prescribed body corporate, the Girramay People Aboriginal Corporation.

9    In support of the agreement, the following connection material has been filed:

(1)    the Applicant’s Nomination and Consent of the Prescribed Body Corporate filed 25 June 2018;

(2)    the Applicant’s expert connection report of Associate Professor Sandra Pannell PhD filed 29 June 2018;

(3)    affidavits filed 24 August 2015 with the Form 1 on behalf of the Applicant from:

(a)    Claude Frank Beeron sworn 10 June 2015;

(b)    Abraham Muriata sworn 10 June 2015;

(4)    an affidavit filed 15 January 2018 on behalf of the Applicant from Abraham Muriata sworn 27 June 2017;

(5)    an affidavit filed 23 May 2018 on behalf of the Applicant from Abraham Muriata sworn 16 February 2018;

(6)    affidavits filed 29 June 2018 on behalf of the Applicant from:

(a)    Claude Frank Beeron sworn 25 November 2015;

(b)    Abraham Muriata sworn 27 January 2016;

(c)    Damien Dickman sworn 24 June 2016;

(d)    Tracey Dickman sworn 24 June 2016;

(e)    Abraham Muriata sworn 27 July 2016;

(7)    a Statement of Abraham Muriata filed 29 June 2018 sworn 9 August 2017.

10    The report of Associate Professor Pannell, an anthropologist, explains that the Girramay people identify themselves by reference to three elements of cultural and social identity: the Girramay language; an identifiable group of Aboriginal people claiming a kinship connection to forbears who were Girramay-speaking; and a defined area of land and waters. The word “Girramay” distinguishes the Girramay people from other Aboriginal peoples and other named native title claim groups due to language, antecedents and country.

11    Associate Professor Pannell considered oral testimony and written records to determine that the Girramay antecedents possess Girramay people connections, are linked to Girramay country, are recognised and accepted by neighbouring regional community, and continue to acknowledge and observe traditional laws and customs. Genealogical information indicates that the grouping of Girramay people in the present day is comprised of approximately 830 people, suggesting that the population of Girramay people may have recovered to some extent from the depredations of European colonization. Ultimately, Associate Professor Pannell concludes that contemporary Girramay people are connected to identified members of the pre-sovereignty group of Girramay people due to genealogical links and the acknowledgement and observation of traditional Girramay laws and customs. The contemporary Girramay people have a continuing connection to Girramay country.

12    Section 87 of the Act gives the Court the power, at any stage of the proceedings after the end of the period specified in any notice given under s 66 of the Act, to make an order consistent with the terms of an agreement between the parties to the proceeding without holding a hearing in relation to the application if it appears to be appropriate to do so.

13    The conditions under s 87 of the Act that enable the Court to make the determination without a hearing are:

(1)    the period specified in the notice given under s 66 of the Act in relation to the Application has ended and there is an agreement between all the parties on the terms of a proposed order of the Court in relation to the proceedings: s 87(1)(a);

(2)    the terms of the proposed determination agreement are in writing and are signed by or on behalf of the parties and filed with the Court: s 87(1)(b);

(3)    the Court is satisfied that an order in, or consistent with, those terms would be within its power: s 87(1)(c);

(4)    the Court considers it appropriate to make the orders sought: s 87(1A) and (2).

14    The Act encourages parties to take responsibility for resolving the proceedings without the need for the Court to intervene by way of a hearing. Therefore, when the Court is examining the appropriateness of an agreement reached by the parties, the focus of the Court in considering whether the orders sought are appropriate under ss 87(1) and (2) is on the making of the agreement between the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J said at [36] to [37]:

The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.

In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.

15    It is not the role of the Court to inquire as to the merits of the claim. The Court must be satisfied that the orders sought are supported and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court is to consider evidence only for the purpose of determining whether the State is acting in good faith and has made a rational decision: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [29]- [30] per Emmett J. In reference to the “evidence upon which the parties have based their decision to reach a compromise”, Greenwood J held in Wik and Wik Way Native Tile Claim Group v State of Queensland (2009) 258 ALR 306 at [16] and Kowanyama People v State of Queensland [2009] FCA 1192 at [22] that while it is not necessary for the Court to consider the body of material that would be available to it in the course of a contested hearing, it ought to have regard to sufficient material which is capable of demonstrating that the agreement and the proposed orders are “rooted in reality”.

16    State and Territory governments are responsible for ensuring that community interests are protected by getting involved in a process that assesses the underlying evidence as to the existence of native title. In this case, the State is satisfied that the group is an appropriate one to be recognised as holders of native title rights and interests, that it is appropriate to recognise the rights and interests proposed and that it is appropriate for the State to enter into the determination.

17    Section 223 of the Act provides:

Common law rights and interests

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered

(2)    Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

Statutory rights and interests

(3)    Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

…

Subsection (3) does not apply to statutory access rights

(3A)     Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

Case not covered by subsection (3)

(4)    To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

(a)    in a pastoral lease granted before 1 January 1994; or

(b)    in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.

18    Section 225(a) of the Act requires that the determination set out who are the persons, in each group of persons, holding the common or group rights comprised by the native title area. That is satisfied in this application.

19    The requirement that the determination set out the nature and extent of the native title rights and interests in relation to the area has also been satisfied, as required by s 225(b).

20    The Court has jurisdiction to make the orders sought pursuant to s 81 of the Act.

21    The formal requirements in s 87 of the Act have been satisfied:

(1)    the period for notification of the Application under s 66 of the Act has ended: s 87(1)(a);

(2)    the parties reached an agreement as to the terms of a determination of native title: s 87(1)(a)(i);

(3)    the parties have recorded their agreement in the Minute of Consent: s 87(1)(b); and

(4)    an order in terms of the Minute, or consistent with the Minute, would be within the Court’s power because:

(a)    the application is valid and in accordance with s 61 of the Act;

(b)    the application is for a determination of native title in relation to an area for which there was no approved determination of native title: s 13(1)(a);

(c)    the Minute agreed to by the parties complies with ss 94A and 225 of the Act: s 87(1)(c).

22    In addition, it is also appropriate for the Court to make the orders sought because:

(1)    the parties have had independent and competent legal advice and have freely entered into the agreement;

(2)    the parties have agreed that the nature and extent of interests and the proposed determination is unambiguous and certain as to the rights declared;

(3)    there are no proceedings before the Court relating to native title determination applications that cover any part of the area that is the subject of this application that would otherwise require orders under s 67(1) of the Act; and

(4)    the State has played an active role in the negotiation of the determination and, in doing so, has taken an interest in the proceeding on behalf of the community and given appropriate consideration to the connection material.

Prescribed Body Corporate

23    Section 55 of the Act requires the Court to make such determinations as required by ss 56 and 57 at the same time or as soon as practicable after the determination.

24    Paragraph 16 of the proposed determination provides that the native title is to be held on trust and the Girramay People Aboriginal Corporation (ICN: 4739) (the Corporation) is to be the prescribed body corporate. This accords with the purposes of s 56 of the Act.

25    In support of the agreement reached and the nomination of a prescribed body corporate, the affidavit of Cheryl Thomson sworn 5 July 2018 deposes to the steps taken to authorise the agreement reached regarding the nomination of a prescribed body corporate.

26    Annexure ‘CT1’ is a true copy of the Certificate of Incorporation of the Corporation, issued on 30 June 2010 in response to a name change. This Certificate states that the Corporation was first registered on 29 June 2007 and is incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). The Corporation is the prescribed body corporate under the previous determination of native title in favour of the Girramay People on 10 December 2009.

27    On 25 June 2018, the applicant filed a Notice of Nomination and Consent of the Prescribed Body Corporate which nominates the Corporation. The Corporation is nominated as the Prescribed Body Corporate to perform the functions prescribed in s 56(3) of the Act, which satisfies s 56(2)(a)(i) of the Act. The Corporation consents to the nomination, which satisfies s 56(2)(a)(ii) of the Act.

28    Accordingly, the Court determines that the Corporation is to be the prescribed body corporate for the purposes of s 56(1) of the Act.

Conclusion

29    For the reasons above, I will make the orders agreed upon by the parties.

Associate:    

Dated:    1 August 2018

SCHEDULE OF PARTIES