Dowsett J
In this matter Stephen Brooks, Alfred Joyce, Victor Maund and Dean Purcell sought a consent determination of native title on behalf of the Mamu people (Applicant). The claim area is not large, no wider than 50 kilometres in a direct line from north to south and east to west. The eastern boundary is the Pacific coast, between Cooper Point in the north and North Maria Creek in the south in the State of Queensland.
After a proposed consent determination had been filed with the Court the State of Queensland (the State) advised the Court and the parties that it was withdrawing its consent.
Background
The original Mamu people's native title claim application was filed in 2001. The respondents include the State, a number of Regional Councils, Ergon Energy Corporation Limited and various people involved in the fishing industry.
In 2011 the description of the Mamu claim group was amended, with Annie Musycon removed and Polly Armie and Bella Abasene added, to reflect the results of further anthropological research. By April 2011 the Applicant and the State were negotiating in the hope of achieving a consent determination and on 25 July 2012 a proposed consent determination was filed with the Federal Court (Court).
The matter was listed for a consent determination on 3 September 2012. Around 2 weeks before the hearing, the North Queensland Land Council advised the Court that there was some concern about the inclusion of Bella Abasene as an apical ancestor and another indigenous group, the Wanyurr Majay People, may assert an interest in an area in the north of the claim area. The consent determination date was then rescheduled to 25 March 2013.
On 23 February 2013 the claim group approved the removal of Bella Abasene as an apical ancestor. Two Wanyurr Majay people then made an application to join the Mamu claim as respondents on the basis of protecting alleged Wanyurr Majay interests in the claim area.
Justice Dowsett dismissed the Wanyurr Majay joinder application due to insufficient evidence and the State sought an adjournment to further consider the Wanyurr Majay claim. See Brooks on behalf of the Mamu People v State of Queensland (No 2) [2013] FCA 557 in Related Content.
Can the State withdraw its consent to an agreement made under s 87A of the Native Title Act 1993 (Cth)?
On 20 March 2013 the State advised that it was withdrawing consent to the proposed determination. The State's primary concern was the possible interest of the Wanyurr Majay people in the disputed area and the removal of Bella Abasene from the claim group's apical ancestors seemed to weaken the Mamu's claim to the disputed area and Polly's status might also favour the Wanyurr Majay claim.
The Court considered this line of reasoning artificial as any failure to establish Bella's and Polly's Mamu status did not detract from the general acceptance of Polly Armie's descendants as Mamu.The Court noted that the State was unable to demonstrate any legal basis for the alleged right to depart from the agreement other than an implicit assertion that its views, as the State, are of considerable importance.
Dowsett J concluded that s 87A of the Native Title Act 1993 (Cth) (NTA) is an exception to the Court's usual practice of exercising it's jurisdiction in native title consent determinations in open court. His Honour held that:
s 87A authorises a consent determination being made 'on the papers' and without a hearing;
the filing of a proposed determination under s 87A has contractual effect; and
absent particular circumstances, s 87A does not contemplate departure from any relevant agreement or consent. This is because the process would be easily derailed if parties were permitted to withdraw consent, depriving native title groups and other parties of the expected benefit of such engagement.
His Honour drew attention to the Wanyurr Majay’s unsuccessful application to join the proceedings and observed that the State was seeking to achieve the same probable result: disruption of an agreement, freely made by the parties who have been engaged in these proceedings for many years, thus depriving the Mamu People and other parties of the expected benefit of such engagement.
The Court concluded that, after so much delay and effort, the Mamu people were entitled to resolution of their claim.
In order to determine whether it was appropriate to make an order in accordance with the proposed consent determination Dowsett J considered the voluminous anthropological material in evidence (see [48]-[111] of the decision).
His Honour held that the composition of the claim group is a matter for the claim group and the applicant does not need to show that each member of the claim group is descended from the identified persons. It is enough that the members identify one another as members of that community living under its laws and customs. The Court was satisfied that the identification of the claim group had been settled by the claim group. The outstanding question was whether that claim group could demonstrate that it was the holder of native title over the disputed area.
His Honour assessed the evidence in relation to the disputed parts of the claim area and concluded that the Mamu People had a strong claim to the area south of the claim area boundary and the Court, the Mamu People and the respondents had all afforded the Wanyurr Majay People more than adequate opportunity to formulate and present their claim but the Wanyurr Majay People had not done so.
On this point, the Court concluded that given the strength of the Mamu claim to the whole area, it seemed that the Wanyurr Majay claim must be to some shared or usufructuary interest. Even so, the basis for any claim to the disputed area remained unclear and there was no suggestion that the filing of a Wanyurr Majay native title claim to the area is imminent. By this delay, the Wanyurr Majay People had forfeited any right to further consideration of any claim which they may have.
Justice Dowsett concluded that the Court should proceed to a consent determination under s 87A of the NTA and the filed consent determination, subject to amendments as agreed by the parties.