Djabugay People v State of Queensland [2004] FCA 1652

FEDERAL COURT OF AUSTRALIA

Djabugay People v State of Queensland [2004] FCA 1652 NATIVE TITLE – consent determination – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate Native Title Act 1993 (Cth) BARRY HUNTER, IVAN BRIM, LLOYD LEVERS, GERALD HOBBLER, MELVYN HUNTER, PATRICK HASTIE AND RHONDA BRIM on their own behalf and on behalf of the DJABUGAY PEOPLE v STATE OF QUEENSLAND and CAIRNS CITY COUNCIL No QG 6002 of 1998 SPENDER J KURANDA 17 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 6002 OF 1998

BETWEEN: BARRY HUNTER, IVAN BRIM, LLOYD LEVERS, GERALD HOBBLER, MELVYN HUNTER, PATRICK HASTIE AND RHONDA BRIM on their own behalf and on behalf of the DJABUGAY PEOPLE

APPLICANT

AND: STATE OF QUEENSLAND

FIRST RESPONDENT

AND: CAIRNS CITY COUNCIL

SECOND RESPONDENT

JUDGE: SPENDER J

DATE: 17 DECEMBER 2004

PLACE: KURANDA

REASONS FOR JUDGMENT 1 This proceeding arises out of an application for a determination of native title made by Barry Hunter, Ivan Brim, Lloyd Levers, Gerald Hobbler, Melvyn Hunter, Patrick Hastie and Rhonda Brim, on their own behalf and on behalf of the Djabugay People. The respondents are the State of Queensland and the Cairns City Council. The claim area comprises land and waters within the Barron Gorge National Park. BACKGROUND OF THE APPLICATION: 2 The application for determination of native title was lodged with the National Native Title Tribunal on 13 May 1994. That application filed by Andrew Duffin identified the area in the claim as: 'The area of land covered by the application is Barron Falls National Park excluding railway reserves, electricity reserves, road reserves, pipe reserves within the area marked on the map attached…' The claim was entered onto the Native Title Register on 17 January 2002. 3 On 29 March 2001 leave was granted for the application to be amended such that areas in which it might have been argued that native title had been extinguished, were removed from the claim area. The claim area was described in the amended application as: 'The area covered by this application ("the claim area") comprises the land and waters of the Barron Gorge National Park being Lot 880 on Plan NPW 459 but does not include: 1. Former Lots 1,2,3 and 4 on Plan NR 7579. 2. Former Lots 21 and 22 on Plan NR 7579. 3. The land the subject of Term Lease 0/213315 being Lot D on CP 894159, Lot E in strata on CP 891025, Lot F in strata on CP 891027, Lot G in strata CP 894159 and Lot H in strata on CP 894157. 4. Former Portion 164 Parish of Cairns on NR 1735. 5. Former Portion 194 Parish of Cairns on NR 1735. 6. Former Portion 383 Parish of Cairns on NR 3594. 7. Former Lengthmens Camp Reserves 85, 169 and 171. 8. Any land or waters that are affected by a previous exclusive possession act, as that term is defined in s.23B of the Native Title Act 1993 (Cwth). The native title claim group do not assert that they possess exclusive possession to any land or waters that are affected by a previous non-exclusive possession act, as that term is defined in s.23F of the Native Title Act 1993 (Cwth).' 4 In that amended application the applicant was also amended. Andrew Duffin was removed as applicant and the joint applicant became Barry Hunter, Ivan Brim, Lloyd Levers, Gerald Hobbler, Melvyn Hunter, Patrick Hastie and Rhonda Brim. 5 The Cairns City Council was joined as a party to the proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) ('the Act') by order on 27 June 2002. 6 The application was further amended on 20 August 2003 to 'reflect previous negotiations and to facilitate ongoing negotiations between the parties, in anticipation of a possible consent determination of native title.' In that amendment further areas were excluded from the native title claim area. 7 The application was further amended on 10 May 2004. The amendments included an updated draft consent determination that was said to 'reflect the ongoing negotiations between the parties.' 8 The final amendments to the application for native title were made by consent on 8 December 2004. 9 The agreement reached between the parties confers non-exclusive rights on the Djabugay People to use and enjoy the land and waters in the determination area. The agreement between the parties is subject to the Court being satisfied that it has the power to make orders in terms of those sought and the Court being satisfied that it is proper to do so. POWER OF THE COURT: 10 Pursuant to s 13 of the Act, applications for the determination of native title may be made to the Federal Court in relation to areas for which there is no approved determination of native title. Part 3 of the Act sets out the rules for making such applications to the Court. 11 Part 4, Division 1C of the Act provides that some or all of the parties involved in a native title proceedings may negotiate an agreed outcome for that application or part of that application. Section 87 of the Act allows the Court, if it is satisfied that such an order is within its power, to make an order in, or consistent with, the terms of the parties' written agreement without holding a hearing. 12 Where the Court makes an order in which a determination of native title is made, s 94A of the Act requires the Court to set out details of the matters mentioned in s 225. Section 225 provides: '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: (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.' CONSIDERATION OF AGREEMENT AND DRAFT DETERMINATION: 13 In considering whether it is appropriate to make the order that the parties seek, I have had the benefit of an affidavit of Barry Lawrence Hunter filed 23 March 2001. In that affidavit Mr Hunter swears to his connection to the claim area according to the traditional laws and customs of his people. 14 I have also had the benefit of an affidavit of Rhonda Dell Brim filed 23 March 2001, in which the deponent swears to her connection with the claim area according to the traditional laws and customs of her people. 15 I have also read the report of Dr Sandra Pannell, Anthropologist, prepared in August 1998 and filed as an annexure to the affidavit of Michael Douglas Neal on 13 December 2004. A summary document of that report was prepared at the request of the solicitor for the applicant and the North Queensland Land Council to assist the Court in considering the agreement between the parties. 16 The report states that the traditional entitlement to ownership of the Djabugay People's ancestral lands and waters derives from the charter of Bulurru. Bulurru is regarded by the Djabugay People as the source of customary beliefs and practices, jural protocols and procedures, and traditional interests and rights. 17 Dr Pannell goes on to say: 'For Djabugay people, the physical features of the claim area not only affirm the veracity of Bulurru Law but they also stand as tangible proof of the continued presence of Bulurru ancestral and totemic beings on and in Djabugay country (bulmba). In summary, the physical landscape, and in particular the "Storyplaces" and "Storywaters" associated with Bulurru, serves as evidence of the inalienable connection that exists between the Djabugay claimants, ancestral Bulurru beings and the lands and waters which comprise the claim area.' 18 Dr Pannell states in her report that the entitlement of the Djabugay claimants to possession of the claim area is recognised by senior members of neighbouring Aboriginal groups and senior members of non-neighbouring Aboriginal groups that have had association with the area through their residence at the Mona Mona mission. 19 The anthropological reports of Norman Tindale in 1938, which were based on the information contained in reports of Meston (1889), McConnel (1931 and 1939-40), Davidson (1938) and Sharp (1938-9), identifies Djabugay territory. The traditional territory was said to include the Barron Gorge and the surrounding area. The description of the traditional territory given by Tindale is generally affirmed by R.M.W Dixon, a linguist with more than three decades of research experience in North Queensland. 20 According to Dr Pannell's report: '… there is no suggestion that the Djabugay people have relinquished their possession of the lands and waters included in the claim area or that this area has been subject to succession or an act of regency-ship by another Aboriginal group.' 21 I am satisfied that the Djabugay People have a long-standing strong connection to the determination area under traditional laws acknowledged and traditional laws observed by them. TERMS OF THE PROPOSED ORDER: 22 The proposed order, which is consistent with the terms agreed by the parties, recognises that the Djabugay People, as the common law holders of the native title in the determination area, are entitled to the non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs. 23 The proposed orders further recognise other interests in the determination area and the relationship of those interests with the native title interests. The proposed order contains other provisions, required by the Act, which are self-explanatory and which it is unnecessary for me to set out here. 24 It is a cause of great satisfaction when native title claims are settled through agreement rather than through litigation. The number of native title determinations by this Court, which have been reached by consent, has dramatically increased in recent times. This suggests that governments and other parties are increasingly aware of the benefits of negotiated settlements of native title claims, which otherwise have the potential to be lengthy, costly and divisive in the community. 25 I am satisfied that the Court has power to make a determination in the terms proposed by the parties by agreement. For the above reasons, I have concluded that it is appropriate to make the order sought by the parties to give effect to their agreement, and I now make that order.