In this matter, Rares J made a negative determination of native title in accordance with an agreement between the applicant, the State and the other respondents, pursuant to s 87(1) of the Native Title Act 1993 (Cth) (NTA). The application brought on behalf of the Mandandanji people commenced in 2008. 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.
[5] Rares J relied on CG v Western Australia [2016] FCAFC 67 [65]-[66], where 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.
[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 The first was filed in September 1997 and was subsequently withdrawn, and the second, filed in October 1997 ultimately, was dismissed. The third filed in June 2001 was also 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 The Bidjara people’s claim was withdrawn in 1997.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] Rares J 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 in 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 provide advice upon the totality of the evidence that the applicant had filed, including Dr Morton’s reports. [12] In 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] In 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.
[15] 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. 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 NTA 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. Rares J considered those submissions and was satisfied that they addressed a proper basis on which the Court may act under s 87 NTA.
Rares J stated at [18]: ‘The State has a particularly significant role to play in proceedings under ss 87 and 87A 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.’
[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
His Honour found at [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] Rares J observed that the agreement for a negative determination was appropriate. His Honour 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. His Honour also had regard to the fact that the State has agreed to the making of the negative determination.
His Honour made the following observations at [23]:
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. The Court was satisfied having regard to the substantive disparity of the experts’ views in the joint report, that there was 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.
His Honour further observed at [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.
[26] The Court was satisfied that it was 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 the Court was 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.
His Honour concluded at [27]: ‘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)).’
Rares J concluded at [28] by stating that ‘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.’