|
|
[Home] [Help] [Databases] [WorldLII] [Feedback] |
|
Australian Indigenous Law Reporter |
8 December 1997
Native title -- application under the Native Title Act 1993 (Cth) for a determination of native title in relation to lands and waters around Hopevale -- order made pursuant to s. 87 of the Act after agreement reached between the parties
In June 1996, a native title determination application was made under the Native Title Act 1993 (Cth) on behalf of eleven Hopevale clans. These clans were later joined by two other clans. The clans agreed to form a body called the Hopevale Congress of Clans, comprising one representative of each of the clans. Following a series of mediations, several internal issues between the applicants were resolved. In particular, the delimitation of clan boundaries was agreed upon. In response to a detailed anthropological report, the State Government accepted that the applicants were the traditional owners of the area under application. Similar recognition had also been given to the applicants by the Hopevale Aboriginal Council. The land in question had been granted to the Hopevale Aboriginal Council in 1986 to be held on trust for the Aboriginal inhabitants.
Between May 1997 and October 1997, a Deed of Agreement was developed through consultation with all parties. This Deed was executed in several parts in October and November 1997.
Held:
The court has the power to make a native title determination (Buck v State of New South Wales, Lockhart J, 7 April 1997, unreported). In making any declaration involving property rights it is necessary to exercise caution. In this case, such a determination was appropriate.
Beaumont J:
This is an application under s. 87 of the Native Title Act 1993 for orders determining that native title rights and interests exist in relation to land and waters near Cooktown in circumstances where the interested parties have reached agreement. The lands in question (of about 110,000 ha) were the subject of a grant in 1986 by the Queensland Government to the Hopevale Aboriginal Council to be held upon trust for the benefit of aboriginal inhabitants. After lengthy negotiations involving mediation by the National Native Title Tribunal, agreement has been reached on the part of all concerned. Their agreement is evidenced in the comprehensive documentation now before the Court. The chronology of the relevant events is described in the annexed document.
I am satisfied that, if it is appropriate to do so, the Court has the power to make a determination of native title (see Buck v State of New South Wales, Lockhart J, 7 April 1997, unreported). The real question is whether it is appropriate to make such an order.
In my view, it is appropriate to make the determination of native title now sought. In so concluding, I am conscious of the need for the Court to exercise caution where a declaratory order involving property rights is sought. But I also take into account, in particular, the existence of the 1986 grant, the anthropological opinion mentioned in the evidence, the course of the negotiations between the interested parties and their professional representatives; and the circumstance that the matter is no longer contentious.
As was the case in the Crescent Head claim in Buck, above, there is no need for the Court, in proceeding under s. 87, to embark upon a detailed, substantive examination of this claim. For present purposes, a more limited examination by the Court of the evidence is appropriate. I am satisfied that a determination that native title exists should now be made.
I note the matters and make orders that a determination of native title be made in the terms of the determination which I have initialled, dated today and placed with the papers.
21 February 1996
The Hopevale clans, comprising the traditional owners of the region north of Cooktown, met in Cooktown, negotiated, and signed a Heads of Agreement whereby the clans agreed (among other things) to make a joint native title application over the Hopevale Deed of Grant in Trust ("dogit").
5 June 1996
The Hopevale native title determination application ("the application") was
lodged with the National Native Title Tribunal (Brisbane Registry) on 5 June
1996 under s. 13(l) and s. 61 of the Native Title Act 1993 (Cth)
("the Act").
The application covered the land and waters of the Hopevale dogit. The application excluded the exclusions specifically listed on Plan BS222, and any land that was formerly freehold land (except dogit land).
The application was made on behalf of the native title holders of eleven Hopevale clans ("the applicants") being:
Gamaay Warra
Dingaal Warra
Nugal Warra
Thuubi Warra
Nguurruumungu Warra
Dharrba Warra
Binhthi Warra
Thiithaarr Warra
Thanil Warra
Nguymbaarr Nguymbaarr Warra
Ngaatha Warra
Each clan was represented in the application by one registered native title claimant.
The application was formally amended on 10 November 1997 to add the Buurnga clan and the Gulaal clan as the twelfth and thirteenth applicant clan, pursuant to agreements between the clans reached in January 1997.
21 June 1996
The application was accepted by the Registrar of the National Native Title Tribunal pursuant to s. 63 of the Act. The application was given the reference number QC 96/15.
14 October 1996
At the conclusion of the public notification period pursuant to s. 66 of the Act, the following parties were registered as parties to the application (in addition to the applicants):
Australian Maritime Safety Authority -- Minter Ellison Lawyers
Cape Flattery Silica Mines Pty Ltd -- Clayton Utz, Solicitors
Cape York Land Council -- Louise Goodchild
Cook Shire Council -- Mr Hans Looser
Far North Queensland Electricity Corporation -- MacDonnells
Gordon Charlie -- Mr Peter Poynton
Hopevale Aboriginal Council -- Mr Stephen Wallace
Minister for Natural Resources -- Crown Solicitor's Office (later, Honourable Robert Borbidge, MLA for the State of Queensland)
William Robert Dunn -- Queensland Commercial Fishermen's Organisation (later, Queensland Commercial Fishermen's Organisation as agent for Robert William Dunn and now represented by Clayton Utz, Solicitors)
Telstra Corporation Limited -- Holding Redlich
February 1996 -- November 1996
The applicants participated in a number of pre-plenary mediation meetings between themselves to resolve some internal issues, and also met with some of the parties.
Following a pre-plenary meeting with the Hopevale Aboriginal Council in August 1996, the applicants entered into an agreement with the Hopevale Aboriginal Council in December 1996, in which the Council acknowledged the traditional ownership of the applicants, and the applicants acknowledged the functions of the Hopevale Aboriginal Council. Both parties agreed to respect one another in the future.
20 November 1996
A s. 72 plenary conference was convened on 20 November 1996. Justice Robert French, President of the Tribunal, and the Honourable Hal Wootten QC were the members for QC96/15.
20 November 1996 -- October 1997 -- Mediation meetings
The applicants participated in regular meetings throughout the course of mediation. This included:
* Full plenary conferences of the Tribunal scheduled at Hopevale;
* Full plenary teleconferences with representatives only;
* Meetings between the applicants and particular parties with the Tribunal;
* Meetings between the applicants and particular parties without the Tribunal.
There were a number of significant outcomes in mediation.
In January, February, and March 1997, the applicants participated in a number of intensive workshops covering various internal issues.
1. The applicants mapped their internal clan boundaries, and prepared a clan boundary map for submission to the State, to facilitate the recognition of native title for each clan over their respective clan estates.
2. Following an extensive consultation process with their anthropologist which brought to light a number of issues later requiring the amendment of the native title application, the applicants provided the State Government with a detailed advice on their traditional connection to the area covered by QC96/15 on 23 April 1997. The State, after considering the report, later accepted that the applicants were the traditional owners for the area under application.
3. Through the mediation process, including the mapping and anthropologist reporting process, an `arrangement' was worked out whereby the Dingaal and Nguurruumungu clans agreed to `share' an area of land. This is marked on the map included as Annexure 1 to the Schedule of the Deed of Agreement as "area the subject of an agreement between the Dingaal and Nguurruumungu clans".
The two clans also entered into a confidential agreement regarding use of the shared land area.
4. The traditional owners who are the native title holders of the clans agreed to form a body called the Hopevale Congress of Clans in February 1996 at the Cooktown meetings. Congress was informally constituted during the mediation of QC96/15, and the body evolved during that procesubs.
The Congress is comprised of one representative of each clan. The Congress, together with other members of the clans met approximately once every three weeks at Hopevale throughout the mediation of the application.
To formalise the arrangements which had been in place for nearly 18 months, on 23 October 1997, a deed called the `Compact of Association' was signed by one signatory for each of the twelve clans, and five signatories for the Buurnga clan.
5. An issue arose during mediation regarding the status of people (traditional owners and historical owners) living on the dogit on tenures apparently issued by the Hopevale Aboriginal Council and the State Government.
5.1 A question of validity of the leases was resolved within an extensive mediation process, conducted to determine how the interests of the "lease holders" and the applicants could be reconciled.
5.2 The result of this process was the s. 21 interest regularisation agreement in Annexure 4 to the Schedule to the Deed of Agreement. The s. 21 Agreement contains a full explanation of the history and current status of the interest regularisation procesubs.
May 1997 -- October 1997
6. By approximately May 1997, mediation had progressed to the point where parties were ready to consider a draft determination of native title.
7. Five full drafts of a draft determination of native title were circulated to parties between May and October 1997. The product of this process are the Deeds of Agreement lodged with the Court on 14 November 1997. The scheme of the Agreements is as follows:
7.1 There is a principal Deed of Agreement ("the Deed") between the applicants and the parties, whereby all of the parties agree to approach the Federal Court for a determination of native title in the form of the Schedule to the Deed.
7.2 There is a Schedule to the Deed ("the Determination"), setting out the native title rights and interests the parties agree the applicants have, and the limitations on those rights, etc.
7.3 There are a series of Annexures to the Schedule to the Deed. The contents of those Annexures is explained in the Schedule. One of the major components of the Annexures is a series of s. 21 agreements negotiated by the applicants, specified parties (Telstra, Far North Queensland Electricity Corporation and Hopevale Aboriginal Council), and the State during mediation.
7.4 There is a Supplementary Deed between the Applicants, the State and the Queensland Commercial Fishermen's Organisation ("the QCFO Deed").
8. The applicants and most parties to the agreement, executed the Deed on or before 24 October 1997. Officers of the State signed the Deed on 24 October 1997, however this did not amount to execution of the Deed by the State (see cl. 3 of the Deed).
8.1 The Queensland Commercial Fisherman's Organisation as agent for Robert William Dunn executed the Deed and the QCFO Deed on 4 November 1997.
8.2 The State of Queensland announced it would sign the Deed and the QCFO Deed on 11 November 1997. The Premier signed the Deed and the QCFO Deed on 17 November 1997.
9. Due to the geographical spread of parties across Australia, the Deed exists in four counterpart versions:-
9.1 One counterpart executed by all parties except the Australian Maritime Safety Authority and Queensland Commercial Fishermen's Organisation and the State of Queensland;
9.2 One counterpart executed by all parties except Telstra, Queensland Commercial Fishermen's Organisation and the State of Queensland;
9.3 One counterpart executed by Queensland Commercial Fishermen's Organisation only; and
9.4 One counterpart executed by the State of Queensland only.
10. The QCFO Deed is constituted by one document executed by all three parties, ie the State, the Applicants and the Queensland Commercial Fishermen's Organisation.
12 November 1997
11. The application was referred by the Registrar of the Tribunal to the Federal Court pursuant to s. 74 of the Act.
12. The proceeding number allocated by the Federal Court is QG 174 of 1997.
13 November 1997
With the support of other parties to the Application, the solicitors for the applicants wrote to a Registrar of the Federal Court requesting, for the reasons there set out, that there be an expedited hearing of the Application.
17 November 1997
The Premier of the State of Queensland physically executed the deed of agreement, and the QCFO Deed.
Affidavits sworn in June 1996 by the applicants, in their own behalf and on behalf of their co-applicants, in compliance with the requirements of s. 62 of the Act, were filed in the Registry of the Court.
18 November 1997
At a directions hearing Beaumont J made orders, with the consent of the parties, fixing the matter for hearing and detailing procedures with respect to the filing and service of statements of cultural and customary concerns, as well as other procedural and case management issues arising from, inter alia, Order. 78 of the Federal Court Rules ("the Rules").
25 November 1997
Under Order 78 r. 8(l)(a) of the Rules, a statement of cultural and customary concerns was filed by the applicants in the Registry of the Federal Court.
26 November 1997
Under Order 78 r. 8(3)(a), a Statement of Cultural and Customary Concerns was filed by Gordon Charlie in the Registry of the Federal Court.
28 November 1997
At a directions hearing, orders were made by Beaumont J, with the consent of the parties. These orders were in relation to the filing and service of affidavit evidence, the notice of motion to be filed and served by the applicants, compliance with the requirements of Order 78 r. 4(2) and (3) and 8(2), (3)(a), and the course of the proceedings generally.
Determination
The Court notes:
A. That the Applicants and the Respondents have reached an agreement in accordance with the terms contained in the Deed of Agreement between the Applicants and the Respondents dated 17 November 1997 ("the Deed"), and the Deed of Agreement between the Applicants, the State of Queensland, and the Queensland Commercial Fishermen's Organisation ("the QCFO Deed") dated 17 November 1997 (copies of which are annexed to this determination), in relation to these proceedings and all matters arising out of these proceedings.
B. That in clause 1 of the Deed, the parties agreed "... to make application to the Federal Court of Australia for a consent order for a determination of native title rights and interests of the Applicants in the dogit land in the terms of the Schedule ...".
C. That pursuant to subs. 87(l)(a)(i) of the Native Title Act 1993 (Cth), the parties have reached agreement that the Court make determinations in relation to the proceedings in the terms of the Deed and the QCFO Deed, and that those deeds form part of the determination.
D. That pursuant to subs. 87(l)(b) of the Native Title Act 1993 (Cth), the Deed and the QCFO Deed, in writing signed by or on behalf of the parties, have been lodged with the Court.
E. The parties have requested pursuant to Order 10 sub-rule 3(l) of the Federal Court Rules, that the Court hear and determine the proceeding at this directions hearing today.
F. The terms of the proposed determinations involve the making of a determination that native title exists in relation to certain land and waters.
G. That the Applicants, as representatives of the common law holders of the respective clans which they represent, have not made a nomination pursuant to subs. 56(2) of the Native Title Act 1993 (Cth) in regard to the holding of native title on trust.
H. The parties have requested that the Court, pursuant to subs. 56(2)(c) of the Native Title Act 1993 (Cth), make a determination that the native title rights and interests are held by the common law holders.
I. That Herman Bambie, as a representative of the common law holders of the Thuubi clan, has made a nomination pursuant to subs. 57(2)(a) of the Native Title Act 1993 (Cth) that the Dhubbiwarra Aboriginal Corporation, a prescribed body corporate, perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth).
J. That the common law holders of the Gamaay, Nugal, Nguurruumungu, Dharrpa, Binhthi, Thiithaarr, Thanil, Nguymbaarr Nguymbaarr, Ngaatha, Gulaal and Buurnga clans are in the process of seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth), the Hopevale Congress Aboriginal Corporation to be a prescribed body corporate and perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth).
K. That the common law holders of the Dingaal clan are in the process of seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth), the Walmbaar Aboriginal Corporation to be a prescribed body corporate and perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth).
L. That pursuant to cl. 17 and 18 of the Schedule to the Deed, upon the making of this determination and the registration of the Hopevale Congress Aboriginal Corporation, the Dhubbiwarra Aboriginal Corporation and the Walmbaar Aboriginal Corporation (or such other corporations as prescribed bodies corporate) on the National Native Title Register pursuant to subsection 193(2)(d) of the Native Title Act 1993 (Cth), the Applicants will direct their respective registered native title bodies corporate to enter into the section 21 agreements contained in Annexures 4, 5, 6 and 7 of the Schedule to the Deed.
The Court, being satisfied that a determination in the terms sought by the parties would be within the power of the Court and, it appearing to the Court appropriate to do so, the Court, pursuant to subs. 87(2) of the Native Title Act 1993 (Cth), and by the consent of the parties, makes the following determination, namely:-
1. That the native title rights and interests exist in relation to the land and waters of the Hopevale Deed of Grant in Trust to the high water mark, being the land described in clause 1 of the Schedule to the Deed, in accordance with and subject to the terms of the Schedule to the Deed (which is Annexure 1 to this determination), and the QCFO Deed (which is Annexure 2 to this determination).
2. That in accordance with Annexure 2 of the Schedule to the Deed:
2.1 native title rights and interests have been extinguished on the areas of land listed in Table A; and
2.2 native title rights and interests may have been affected by a lawful physical activity carried out pursuant to granted interests on the land or waters listed in Table B; and
2.3 the determination does not apply to historical portions 2v, 6v, 16v and 18v, being historical tenures formerly contained in part of the land described in cl. 1 of the Schedule to the Deed, and graphically displayed on the map included as Annexure 3 to this determination.
3. The native title rights and interests which exist in accordance with the Deed and the QCFO Deed are held by the common law holders of the following clan groups for their respective clan estates:-
Gamaay clan;
Dingaal clan;
Nugal clan;
Thuubi clan;
Nguurruumungu clan;
Dharrpa clan;
Binhthi clan;
Thiithaarr clan;
Thanil clan;
Nguymbaarr Nguymbaarr clan;
Ngaatha clan,
Buurnga clan; and
Gulaal clan,
4. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Erica Deeral, a representative of the common law holders of the Gamaay clan, must nominate in writing to the Court within six months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
5. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Phillip Baru, a representative of the common law holders of the Dingaal clan, must nominate in writing to the Court within six months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
6. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Bertie Gordon, a representative of the common law holders of the Nugal clan, must nominate in writing to the Court within 6 months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
7. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Brian Cobus, a representative of the common law holders of the Nguurruumungu clan, must nominate in writing to the Court within six months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
8. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Wayne Coats, a representative of the common law holders of the Dharrpa clan, must nominate in writing to the Court within six months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
9. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Pat Wallace, a representative of the common law holders of the Binhthi clan, must nominate in writing to the Court within six months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
10. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Eddie Deemal, a representative of the common law holders of the Thiithaarr clan, must nominate in writing to the Court within six months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
11. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Hector Michael, a representative of the common law holders of the Thanil clan, must nominate in writing to the Court within six months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
12. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), George Rosendale, a representative of the common law holders of the Nguymbaarr Nguymbaarr clan, must nominate in writing to the Court within 6 months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
13. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Terrence Jacko, a representative of the common law holders of the Ngaatha clan, must nominate in writing to the Court within 6 months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
14. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Martin James, a representative of the common law holders of the Gulaal clan, must nominate in writing to the Court within 6 months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
15. That, pursuant to subs. 57(2) of the Native Title Act 1993 (Cth), Bertie Gordon, Herman Bambie, Pat Wallace, Eddie Deemal and Terrence Jacko, representatives of the common law holders jointly on behalf of the Buurnga clan, must nominate in writing to the Court within six months of the date of this determination, a prescribed body corporate to perform the functions mentioned in subs. 57(3) of the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.
16. That where any party named in determinations 4 to 15 inclusive is unable, by reason of death, infirmity or incapacity, to make the nomination within the time set out in that determination, another representative of the common law holders of the clan of which that person was a representative, may be substituted as a representative for the purposes of making the nomination in writing on behalf of the common law holders who are members of that clan.
17. That the Dhubbiwarra Aboriginal Corporation, a prescribed body corporate for the purposes of subs. 57(2) of the Native Title Act 1993 (Cth), be the agent for the common law holders of the Thuubi clan.
The Court further notes that where words are used in this determination that are defined in the Deed or the QCFO Deed, those definitions apply.