Charlesworth J
This case concerned the resolution of overlapping native title determination applications in and around the city of Cairns. The respondent was the State of Queensland.
Background
The claims were brought on behalf of the Gimuy Walubara Yidinji People (QUD23/2019), the Yirrganydji (Irukandji) People (QUD14/2019 and QUD337/2015), the Cairns Regional Claim Group (QUD692/2016) and the Kunggandji Gurrabuna People (QUD21/2019). Following mediation, the parties entered into an agreement (the ‘Protocol Deed’) by which they agreed to refer the dispute to a referee and be bound by the referee’s report. Accordingly, they applied to the Court for orders under s 54A(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 28.61 of the Federal Court Rules 2011 (Cth) (FCA Rules) that the Court refer the questions of native title rights and interests to a referee for inquiry and report. These referral procedures had not previously been used in the context of proceedings under the Native Title Act 1993 (Cth) (NTA).
By consent orders made on 5 April 2019, Robertson J referred three questions to a senior referee and an anthropological referee for inquiry and report. The referred questions were in terms framed by the parties and were directed to which group or groups held native title rights and interests in the specified areas. Following an inquiry, the referees gave their opinion on those questions in a report provided to the Court on 6 March 2020.
Section 54A(3) of the FCA Act and r 28.67 of the FCA Rules provide that the Court may deal with the report as it sees fit, including adopting, varying or rejecting the report.
Orders Sought
The State of Queensland sought orders that the report be adopted. This was opposed by the Yirrganydji and Kunggandji Gurrabuna applicants.
Submissions
It was variously submitted by the parties that the procedure adopted by the referees was unfair and that their reasoning was flawed. However, this was held not to be persuasive, and furthermore that the Deed was binding.
The Yirrganydji people also submitted that they were no longer bound by cl 3 of the Protocol Deed (which stated that the parties agreed to be bound by the referees’ report) because of foreshadowed amendments to the native title claim. It was argued that because the amended claim was founded in succession, it was not inconsistent with the referees’ finding that the Yidinji Patriclans were the holders of native title in the relevant area at sovereignty. Furthermore, that because the referees were not directed to express any opinion as to which group or groups presently hold native title rights and interests in the area, they were not legally authorised to express any opinion in relation to that question.
Decision
Charlesworth J held that on proper construction, the word ‘report’ in s 54A(1) of the FCA Act was not to be read down so as to prohibit the referee from including in the report information other than the bare answers to the referred questions. Circumstances after sovereignty were relevant. Furthermore, as no claim founded in succession had been properly articulated, Charlesworth J was not satisfied there was a proper factual and legal basis to commence such a claim. At [56] His Honour noted with approval the use of the Protocol Deed to resolve the dispute other than through a protracted and costly adversarial trial. Furthermore, the Court held that the decision to enter into the Deed was a relevant consideration to be given great weight when determining whether to adopt the report. This is because ‘an alternative mode of trial was agreed by the Aboriginal parties to be the most appropriate mechanism for the resolution of the particular disputes.’
Orders
Finding it appropriate and within the Court’s power to adopt the report, the Court ordered that the whole of the referee report be adopted.