Reeves J
In this matter the Court made orders by consent that native title does not exist in a large area of land and waters in south-western Queensland including the towns of Quilpie, Cheepie and Toompine, in circumstances where the State had entered into an Indigenous Land Use Agreement (Mardigan ILUA) with the claim group providing for the surrender of native title in the application area in exchange for certain benefits, including land.
Three named applicants represented the Mardigan People. There were 17 respondents including the State of Queensland (State), Paroo Shire Council, Quilpie Shire Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Mr Adrian William Rach and 11 pastoral interests.
Background
The native title determination application was filed in January 2007. The proceeding was listed for trial on 3 occasions (2010, 2013 and 2016). In 2010 the Court made orders for an alternative process that had been agreed between the parties and various expert reports were commissioned on anthropological issues raised by the application. That process failed to resolve the matter and in 2014 the applicant and the State entered into negotiations to achieve an alternative settlement.
In 2017, the State and the Mardigan applicant agreed to enter into negotiations directed at achieving a negative determination of native title. Concurrently, the parties negotiated on the terms of an Indigenous Land Use Agreement to cover the entirety of the application area.
In 2019 the claim group authorised the applicant to enter into the Mardigan ILUA. It also authorised and directed the applicant to consent to the making of a negative consent determination of native title over all of the land and waters covered by the application.
Indigenous Land Use Agreement
The Mardigan ILUA was entered into and registered on the Register of Indigenous Land Use Agreements in 2019.
The Court noted that the Mardigan ILUA authorisation meetings were the subject of wide and extensive public notification, various other methods were employed to inform members of the claim group that they were being held, the meetings were carefully conducted and minuted and the Mardigan applicant and claim group had obtained legal advice in the lead up to, and at, the authorisation meetings.
Negative Determination
In considering whether it was “appropriate” under s 87(1A) of the Native Title Act 1993 (Cth) (NTA) to make orders under s 87(2) of the NTA where the STate had entered into an ILUA with the claim group involving the surrender of native title in exchange for certain benefits the Court applied the principles outlined in Nelson v Northern Territory [2010] FCA 1343, CG v Western Australia [2016] FCAFC 67 and CG (Deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507.
Further, the Court confirmed the discretionary power of the Court to make a negative determination of native title.
Orders
There be a determination of native title in the terms set out below (the determination).
Each party to the proceedings is to bear its own costs.
Determination
The Determination Area is the land and waters described in Schedule 1 and depicted in the map attached to Schedule. To the extent of any inconsistency between the written description and the map, the written description prevails.
Native title does not exist in the Determination Area.