Hill on behalf of the Yirendali People v State of Queensland

[2017] FCA 273

FEDERAL COURT OF AUSTRALIA

Hill on behalf of the Yirendali People v State of Queensland

[2017] FCA 273

File number:

QUD 495 of 2006

Judge:

REEVES J

Date of judgment:

20 March 2017

Catchwords:

NATIVE TITLE – negative consent determination under s 87 Native Title Act 1993 (Cth) – discretionary power to make a negative determination under the Native Title Act 1993 (Cth) – whether the Court should exercise the power to make a negative determination in relation to the claim area

Legislation:

Federal Court Rules 2011 (Cth)

Native Title Act 1993 (Cth)

Cases cited:

CG (Deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507

CG v Western Australia (2016) 240 FCR 466; [2016] FCAFC 67

Hill on behalf of the Yirendali People v Queensland  [2015] FCA 300

Hill on behalf of the Yirendali People v Queensland (No 2) [2015] FCA 538

Hill on behalf of the Yirendali People v Queensland (No 3) [2015] FCA 777

Hill on behalf of theYirendali People v Queensland [2011] FCA 472

Kelly on behalf of the Byron Bay Bundjalung People v New South Wales Aboriginal Land Council [2001] FCA 1479

Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343

Date of hearing:

20 March 2017

Registry:

Queensland

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

32

Solicitor for the Applicant:

J Dillon of Dillon Bowers Lawyers

Solicitor for the First Respondent:

GR Cooper, Crown Solicitor of Crown Law

Solicitor for the Second Respondent:

G Kennedy of Australian Government Solicitor

Solicitor for the Third to Fifth Respondents:

D Cartledge of Gilkerson Legal

Solicitor for the Sixth Respondent:

W Oxby of Herbert Smith Freehills

Solicitor for the Seventh Respondent:

J Humphris of MacDonnells Law

Solicitor for the Eighth Respondent:

M Geritz of Clayton Utz Solicitors

Solicitor for the Ninth Respondent:

B Zillmann of Allens

Solicitor for the Tenth to  Forty-Sixth Respondents:

M Boge of Thynne & Macartney

Solicitor for the Forty-Seventh and Forty-Eighth Respondents:

The Forty-Seventh and Forty-Eighth Respondents appeared in person

Solicitor for the Forty-Ninth and Fiftieth Respondents:

The Forty-Ninth and Fiftieth Respondents appeared in person

Solicitor for the Fifty-First Respondent:

The Fifty-First Respondent appeared in person

ORDERS

QUD 495 of 2006

BETWEEN:

JAMES HILL, MARTINA JACOBS AND JEFFREY LAMMERMOOR ON BEHALF OF THE YIRENDALI PEOPLE

Applicant

AND:

STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

CHARTERS TOWERS REGIONAL COUNCIL (and others named in the Schedule)

Third Respondent

JUDGE:	REEVES J
DATE OF ORDER:	20 MARCH 2017

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth)

BY CONSENT THE COURT ORDERS THAT:

1.There be a determination of native title in the terms set out below (the “determination”).

2.Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

3.The Determination Area is the land and waters described in the Schedule, and depicted in the map attached to the Schedule. To the extent of any inconsistency between the written description and the map, the written description prevails.

4.Native title does not exist in relation to the Determination Area.

DEFINITIONS AND INTERPRETATION

5.In this determination “land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth).

Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

SCHEDULE

A.Description of Determination Area

The Determination Area comprises all of the land and waters within the external boundary described below, and depicted on the map.

Commencing at a point at longitude 143.295339 degrees east latitude 20.580364 degrees south (ADG66), then in a generally north-north-easterly direction through the following points (ADG66):

Point	Longitude (east)	Latitude (south)
1.	143.356905	20.364855
2.	143.414497	20.245680

then in a north-easterly direction to the point where longitude 143.469863 degrees east intersects the centre of the main channel of the Stawell River (Cambridge Creek), then in a generally east-north-easterly direction along the centre of the main channel of the Stawell River to a point where longitude 143.845011 degrees east intersects the centre of the main channel of the said river, then easterly to the mid-point of the western boundary of the Stawell River reserve adjacent to the southern boundary of Lot 3 on Plan CP846344, then in an easterly and north-easterly direction along the centreline of the Stawell River reserve adjacent to the southern boundary of Lot 3 on Plan CP846344 to the intersection of the centreline of the aforementioned reserve with the northerly prolongation of the south-western boundary of Lot 2 on Plan CHL 11, then in a generally easterly direction through the following points:

Point	Longitude (east)	Latitude (south)
3.	143.987719	20.065821
4.	144.074760	20.051587

then east-south-easterly to the point where longitude 144.125455 degrees east intersects the centre of the main channel of Pine Tree Creek, then in a generally north-easterly direction along the centre of the main channel of Pine Tree Creek to the point where longitude 144.206719 degrees east intersects the centre of the main channel of Pine Tree Creek, then in a north-easterly, south-easterly, southerly and westerly direction through the following points:

Point	Longitude (east)	Latitude (south)
5.	144.243065	20.026463
6.	144.500000	20.200000
7.	144.762450	20.281125
8.	145.027313	20.401219
9.	145.156485	20.686329
10.	145.155774	20.699588
11.	145.164655	20.735405
12.	145.200062	20.782514
13.	145.477054	20.812303
14.	145.483333	21.000000
15.	145.393662	21.631492

then southerly to a point on the southern boundary of the former Central Queensland Land Council Aboriginal Corporation (CQLCAC) Native Title Representative Body (NTRB) region (being a point on the southern boundary of the Flinders Shire local government area) at approximately longitude 145.384915 degrees east latitude 21.843882 degrees south then in a generally westerly direction along part of the southern boundary of the former CQLCAC NTRB region (being also along part of the southern boundary of the Flinders Shire local government area) generally through the following points:

Point	Longitude (east)	Latitude (south)
16.	145.369426	21.842341
17.	145.362498	21.841507
18.	145.353765	21.840570
19.	145.338217	21.838686
20.	145.323990	21.836960
21 .	145.322100	21.837069
22.	145.315340	21.836315
23.	145.299753	21.834561
24.	145.268733	21.831203
25.	145.262024	21.830415
26.	145.261430	21.830350
27.	145.260524	21.830247
28.	145.253333	21.795426
29.	145.164980	21.786710
30.	145.162873	21.805376
31.	145.162295	21.805319
32.	145.1571392	21.8509374
33.	145.1570405	21.85184113
34.	145.1563234	21.85818319
35.	145.151537	21.900504
36.	145.074743	21.893128
37.	145.0737645	21.8903325
38.	145.0728301	21.90134230
39.	145.080642	21.91092033
40.	145.080164	21.943346
41.	145.953700	21.931056
42.	145.9527308	21.93096119
43.	145.951103	21.948984
44.	145.949656	21.963450
45.	145.9482214	21.97791649
46.	144.946747	21.992380
47.	144.9435343	22.0226503
48.	144.943476	22.023201
49.	144.9427652	22.02997616
50.	144.9425720	22.03181329
51.	144.9039475	22.061158
52.	144.8302379	22.05052920
53.	144.7981523	22.04739324
54.	144.7924560	22.09978177
55.	144.7498010	22.09621620
56.	144.7487762	22.09662719
57.	144.742987	22.149813
58.	144.743915	22.150293
59.	144.7434885	22.15241972
60.	144.7433411	22.15315686
61.	144.7409019	22.16534594
62.	144.736055	22.212804
63.	144.7202072	22.20279471
64.	144.7141963	22.20439652
65.	144.6884023	22.20158424
66.	144.659612	22.198520
67.	144.6592831	22.19829335
68.	144.648046	22.197429
69.	144.6317905	22.16902561
70.	144.6264957	22.19567425
71.	144.5519110	22.190708
72.	144.533740	22.189377
73.	144.500838	22.1877003
74.	144.498421	22.186828
75.	144.499562	22.168078
76.	144.449731	22.166269
77.	144.395544	22.157784
78.	144.4001573	22.11509471
79.	144.4111955	22.10049520
80.	144.4101440	22.10031028
81.	144.413630	22.063659
82.	144.266487	22.049256
83.	144.2668499	22.04564037
84.	144.267495	22.035085
85.	144.2648001	22.02138794
86.	144.2605066	22.9995784
87.	144.2531048	22.99903025
88.	144.2387953	22.99778682
89.	144.179638	21.992632
90.	144.177652	21.992452
91.	144.177841	21.990645
92.	144.1804345	21.95740460
93.	144.183698	21.915203
94.	144.184670	21.915252
95.	144.185276	21.915283
96.	144. 1860582	21.90996987
97.	144.1833540	21.90970814
98.	144.181334	21.915252
99.	144.1093822	21.90795516
100.	144.1099047	21.90361355
101.	144.093306	21.90016687
102.	144.075085	21.899301
103.	144.0561666	21.89913702
104.	144.036133	21.895015
105.	144.0418607	21.83346698
106.	144.042034	21.831606
107.	144.002237	21.827889
108.	144.932428	21.822234
109.	143.9277998	21.82060565
110.	143.8927727	21.81812485
111.	143.8794793	21.81718134
112.	143.7795442	21.81005326
113.	143.7793472	21.81227591
114.	143.7792175	21.81373972
115.	143.7779022	21.81358456
116.	143.7053527	21.80500649
117.	143.731429	21.80474383
118.	143.7019433	21.86460122
119.	143.6517169	21.7982198
120.	143.649536	21.797335
121.	143.6452608	21.79785212
122.	143.629736	21.796000
123.	143.6388324	21.70338609
124.	143.6389389	21.70230123
125.	143.6448673	21.64192047
126.	143.6450439	21.64012311
127.	143.6106586	21.63690854
128.	143.610466	21.638715
129.	143.5730201	21.63497674
130.	143.5681228	21.63448721
131.	143.557816	21.633456
132.	143.4778166	21.62625597
133.	143.4758830	21.62608141
134.	143.4587995	21.62453836
135.	143.4567143	21.62435001
136.	143.456173	21.624301
137.	143.455808	21.624262
138.	143.4552674	21.62421124
139.	143.4483937	21.62356681
140.	143.446704	21.625231
141.	143.3723460	21.61817433
142.	143.3568777	21.61670207
143.	143.3565490	21.61484518
144.	143.3278319	21.61210792
145.	143.3300188	21.59037533
146.	143.3362299	21.52863397
147.	143.3363708	21.52723294
148.	143.3383567	21.50748640
149.	143.3445058	21.44632805
150.	143.3477292	21.41425740
151.	143.356879	21.323196

then westerly to a point on the southern boundary of the former CQLCAC NTRB region (being a point on the southern boundary of the Flinders Shire local government area) at approximately longitude 143.280298 degrees east latitude 21.316381 degrees south then in a north-north-westerly direction through the following points:

Point	Longitude (east)	Latitude (south)
152.	143.147571	20.747884
153.	143.148417	20.723886

then north-easterly to the point of commencement.

Co-ordinate System and Datum:

Geographic co-ordinates are referenced to Australian Geodetic Datum 1966 (AGD66) and in decimal degrees.

Cadastral information in Central Queensland Land Council Aboriginal Corporation Native Title Representative Body region is based on 1998 DCDC data (Australian Map Grid (AGD84)) used under licence from the State of Queensland (Department of Natural Resources and Mines).

Cadastral information in Gurang Land Council Native Title Representative Body region is based on 1999 DCDB data used under licence from the State of Queensland (Department of Natural Resources and Mines).

Topographic data is based on 1997 1:250,000 topographic data (Australian Geodetic Datum 1966) used under licence from the Commonwealth of Australia (Geoscience Australia).

Use of Co-ordinates:

Where co-ordinates are used within the description to represent cadastral or topographic boundaries or the intersection with such, they are intended as a guide only. As the custodians of cadastral and topographic data continuously re-calculate the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

B.       Map of Determination Area

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

1. This is a somewhat unusual application under s 87 of the Native Title Act 1993 (Cth) (the NTA). It seeks what is commonly described as a consent determination of native title. It is unusual for at least two reasons. First, for its long and troubled history and, secondly, because it is directed to achieving a “non-native title outcome”. That is to say, a consent determination that native title does not exist in the claim area. This form of determination is commonly described as a negative determination of native title. Since its long and troubled history explains why this outcome is being proposed, it is appropriate to begin by describing what that history is.

2. The application was made by James Hill, Martina Jacobs and Jeffrey Lammermoor (as the authorised applicant under s 61(2)) on behalf of the Yirendali People.  It was filed on 13 December 2006 and registered by the National Native Title Tribunal on 17 August 2007.  The notification period under s 66 of the NTA expired on 6 June 2008.  It relates to a large area of land in western Queensland centred around Hughenden and includes parts of the areas of the Charters Towers Regional Council and the Flinders and Richmond Shire Councils.

3. The parties that remain as respondents to the application are the State of Queensland, the Commonwealth of Australia, the Charters Towers Regional Council, the Flinders and Richmond Shire Councils, Ergon Energy and Telstra Corporation together with a significant number of pastoralists and two mining companies.

4. Since 2010, the proceeding has been closely case management by Logan J and the Court’s National Native Title Registrar, Ms Fewings.  Difficulties arose in that process almost from the outset.  Logan J recorded some of those difficulties in one of his earlier case management rulings (Hill on behalf of theYirendali People v Queensland [2011] FCA 472 at [6]–[9]). They included a foreshadowed application to discontinue the application, which was not pursued, followed by a notice to show cause why the application should not be dismissed for want of prosecution, which did not result in dismissal.

5. The application appears to have survived these initial difficulties because, by mid-2014, the applicant had filed two connection reports (an initial and supplementary one) by Dr Andrew Sneddon, an anthropologist; a report by Ms Hilda Maclean, a genealogist; and seven affidavits made by various members of the Yirendali claim group.

6. On 13 June 2014, Logan J ordered that a number of separate questions should be determined pursuant to r 30.01 of the Federal Court Rules 2011 (Cth). They were:

   a)Does native title exist in relation to any and what land and waters of the claim area?

   b)In relation to that part of the claim area where the answer to (a) above is in the affirmative:

   (i)Who are the persons, or each group of persons, holding the common or group rights comprising native title?

   (ii)What is the nature and extent of the native title rights and interests?

7. Later in 2014, the State advised the applicant that it did not accept that the Yirendali claim group could establish the necessary connection with the claim area under the relevant provisions of the NTA.  As a consequence, the separate questions above were set down for trial over a three week period commencing on 29 June 2015.

8. In March 2015, the applicant sought leave to discontinue the application on the ground that it did not have the funds necessary to conduct the trial of the separate questions.  That application was dismissed by Logan J (see Hill on behalf of the Yirendali People v Queensland [2015] FCA 300).

9. Then, in May 2015, the applicant informed the Court that it would not be calling any evidence at the trial of the separate question.  At about the same time, the State made an offer to the applicant to enter into negotiations for the settlement of the matter.  As a result of these developments, the trial of the separate questions was vacated by Logan J (see Hill on behalf of the Yirendali People v Queensland (No 2) [2015] FCA 538).

10. On 29 June 2015, Logan J conducted a case management hearing in the application in order to determine its future.  The main outcome of that hearing was the following order (Hill on behalf of the Yirendali People v Queensland (No 3) [2015] FCA 777):

    6.        In the event that, within 18 months of the date of this order:

    (a)An indigenous land use agreement is not registered upon the Register of Indigenous Land Use Agreements providing for the surrender of native title in respect of the whole of the claim area; and

    (b)An agreement made pursuant to s87 of the Native Title Act 1993 (Cth) annexing a draft determination to the effect that native title does not exist in the claim area is not signed by each of the parties and filed,

    a trial of the separate question pursuant to order 1 of the orders made on 13 June 2014 be set down for a hearing on a date to be fixed for a period of 2 days.

11. Thereafter, as anticipated by Order 6 above, the applicant and the State held negotiations directed to settling the terms of an Indigenous Land Use Agreement (ILUA) to resolve the matter.  Those negotiations included a private mediation that took place in February 2016 before the Honourable Stanley Jones AO QC.  At that mediation, an “in principle” agreement was reached as to the terms of an ILUA.

12. That ILUA was subsequently authorised by the Yirendali claim group, executed and lodged with the National Native Title Tribunal (the Tribunal) for registration.  On 2 December 2016, the ILUA was duly entered on the Register of Indigenous Land Use Agreements maintained by the Tribunal.

13. The ILUA provided for the surrender of native title in relation to the whole of the claim area, in exchange for certain benefits including land exchange and revenue sharing.  It followed that condition (a) of Order 6 (above) was satisfied.

14. On 20 December 2016, the applicant filed with the Court an agreement under s 87 of the NTA (the s 87 agreement) duly executed by all the parties to the proceeding, together with a set of submissions in support of its application for a consent determination in the terms of that agreement.

15. This long and troubled history of this application is particularly relevant to one of the criteria about which this Court has to be satisfied before it makes a determination under s 87 of the NTA. That is, whether, under s 87(1A), it appears to the Court to be “appropriate” to make an order. In this case, the order is to be made under s 87(2).

1. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) at [5]–[13], I canvassed the authorities that identified the factors to which the Court will routinely have regard in determining this question of “appropriateness”. Those factors included:

   (a)the objects of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation [Nelson at [7]];

   (b)whether there is an agreement, and whether it was freely entered into on an informed basis [Nelson at [8] and [9]];

   (c)whether the parties have independent and competent legal representation [Nelson at [14]];

   (d)whether the terms of the proposed order are unambiguous and clear [Nelson at [14]];

   (e)whether the agreement has been preceded by a mediation process [Nelson at [14]].

2. Having regard to the history set out above, and particularly the events since Logan J made Order 6 on 29 June 2015, I consider the sentiments expressed in factors (a), (b) and (e) above have clearly been met. Further, since all the parties, particularly the applicant and the State, have had independent and competent legal representation throughout, I consider factor (c) has also been met. Finally, from the terms of the s 87 agreement filed with the Court, it is apparent that it is unambiguous and clear in its terms and therefore factor (d) has also been met.

3. However, as I have already mentioned above, this matter raises another consideration that did not arise in Nelson.  That is, whether it is appropriate, in the circumstances, to make a determination that native title does not exist in the claim area.  The discretionary power of the Court to make such a negative determination of native title was authoritatively affirmed in CG v Western Australia (2016) 240 FCR 466; [2016] FCAFC 67 (Badimia).

4. The discretionary considerations that were taken into account by the primary judge in Badimia were as follows :

   (a)the serious consequences for the claimant group ([2015] FCA 507 at [79]);

   (b)the fact that a full and complete trial had considered the relevant connection issues in the claim area ([2015] FCA 507 at [79]);

   (c)that following the lodgement of the claimant application, no other indigenous persons or groups had come forward to challenge the claimant’s alleged interests ([2015] FCA 507 at [80]);

   (d)the fact that the claim had been formulated with the assistance of the relevant native title representative body, with the advice and representation of experienced solicitors and counsel and relying upon the evidence of an experienced anthropologist (see [2015] FCA 507 at [80]); and

   (e)that it was artificial to suggest that a new claim group could exist comprising only the descendants of the claimants who had been identified by the Court ([2015] FCA 507 at [81] and [82]).

5. The consideration in (a) above shows that the circumstances of the negative determination in Badimia were very different to those of the present case.  Nonetheless, I consider these considerations provide some assistance in identifying the factors I should take into account in this matter.  Having regard to them, I consider that they include the following matters.

6. As I have already mentioned above (see at [17]), throughout this proceeding all the parties have been represented by competent legal advisers.  This reflects the consideration in Badimia at [19(d)] above.

7. As in Badimia, following the notification of this application under s 66 of the NTA, no other indigenous persons or groups came forward to challenge the Yirendali claim groups alleged interests in the claim area.  This reflects the consideration in Badimia at [19(c)] above.

8. Prior to the trial that was fixed for the separate questions in June 2015, the parties exchanged the experts’ reports upon which they wished to rely. The applicant’s experts’ reports are already identified at [5] above. In May 2015, the State filed an expert report by Professor Sandra Pannell, an anthropologist. Professor Pannell’s report is comprehensive and detailed. In it she considered Dr Sneddon’s reports and the seven affidavits made by various members of the Yirendali claim group (see at [5] above). The final few sentences of her report provide some indication of the conclusions she came to about whether or not native title existed in the claim area. She said:

   it is evident from the available material that the descendants of these claim group antecedents have not continued to acknowledge and observe the traditional laws and customs of their Dalleburra antecedents, in a substantially uninterrupted manner, since effective sovereignty.  Moreover … members of the Yirendali claim group have not, either individually or as a group, continued to acknowledge and observe the pre-sovereignty laws and customs of Yirandhali people, as reported in the written record. 

9. This conclusion has obviously informed the approach the State has taken to negotiate a non-native title outcome to the Yirendali applications. That aside, it is apparent that both the applicant and the State obtained the advice of experts and, in particular, experienced anthropologists in putting forward this application under s 87. This reflects the consideration in [19(d)].

10. Far from there being a contest about the existence of native title in the claim area, as there was in Badimia, in this matter the applicant and the State have now agreed to, and had registered, an ILUA under which whatever native title exists in the whole of the claim area is surrendered.  This agreement is plainly a highly relevant factor in exercising my discretion to make this negative determination.  In this respect, it is worth recording the observations of Branson J in Kelly on behalf of the Byron Bay Bundjalung People v New South Wales Aboriginal Land Council [2001] FCA 1479. That matter involved an application under s 87 of the NTA to make a determination that native title did not exist in circumstances very similar to those of the present case. Specifically, the applicant had entered into an ILUA with the State to surrender to it any native title rights and interests that it may hold in the land in question. As to the significance of that ILUA, her Honour said (at [19]):

    Section 24EA of the [NTA] gives contractual effect to an agreement entered on the Register of Indigenous Land Use Agreements. It also provides that all persons holding native title in relation to the land in the area covered by the agreement, who are not already parties to the agreement, are bound by the agreement in the same way as the registered native title bodies corporate or the native title group, as the case may be. In the circumstances I am satisfied that it is within the power of the Court now to order that native title does not exist in the land the subject of this proceeding. That is because the State Minister has, pursuant to a valid and binding agreement, accepted the surrender of any native title that may have previously existed in the land.

11. Having regard to all these matters, I am satisfied it is appropriate to make the determination orders that have been sought by the parties in the s 87 agreement.

12. However, there is a number of other requirements in s 87 of the NTA that must be met before a determination can be made. The first three of those requirements, and the evidence that shows that the parties have met them, are as follows:

    (a)the notice period under s 66 of the NTA must have ended before the written agreement of the parties is filed with the Court: s 87(1). As I have already noted above, this notification period ceased on 6 June 2008, well before the s 87 agreement was filed with the Court on 20 December 2016;

    (b)the agreement of the parties must relate to the whole of the proceeding, part of the proceeding, or a matter arising out of the proceeding: s 87(1)(a). As the proposed orders in the s 87 agreement relate to the whole of the proceeding, this requirement, too, has been met; and

    (c)s 87(1)(b) of the NTA requires that the agreement must be reduced to writing, signed by the parties, and filed with the Court. The s 87 agreement filed with the Court demonstrates that each of these requirements has also been met.

13. The next requirement is that the Court must be satisfied that the proposed orders, or orders consistent with them, would be within the power of the Court (s 87(1)(c)).  An order will be within the power of the Court if it complies with the various provisions of the NTA including ss 94A and 225.  Section 94A requires that:

    An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).

14. This provision obviously requires attention to the matters mentioned in s 225 of the NTA.  That section provides:

    A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

    (a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

    (b)the nature and extent of the native title rights and interests in relation to the determination area; and

    (c)the nature and extent of any other interests in relation to the determination area; and

    (d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

    (e)to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

    (Note omitted)

15. It can be seen that the determination only needs to include the matters described in s 225(a) to (e) if native title does exist in the determination area.  Those matters obviously cannot be included in a determination that native title does not exist.  For similar reasons, the provisions of Division 6, Part 2 of the NTA relating to prescribed bodies corporate do not apply to the present determination (see s 55(b)).

16. Finally, none of the parties to the proceeding has elected to file an agreed statement of facts so I do not need to concern myself with the provisions of ss 87(8) to (11) inclusive.

17. For these reasons, I am therefore satisfied that all of the requirements in s 87 of the NTA have been met and it is appropriate to make a determination that native title does not exist in the whole of the claim area, without holding a hearing.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:       

Dated:       20 March 2017

SCHEDULE OF PARTIES

QUD 495 of 2006
Respondents
Fourth Respondent:	FLINDERS SHIRE COUNCIL
Fifth Respondent:	RICHMOND SHIRE COUNCIL
Sixth Respondent:	TELSTRA CORPORATION LIMITED ACN 051 775 556
Seventh Respondent:	ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
Eighth Respondent:	AUSTRALIA PACIFIC LNG PTY LIMITED ACN 001 646 331
Ninth Respondent:	GLENCORE COAL QUEENSLAND PTY LIMITED ACN 098 156 702
Tenth Respondent:	MAUREEN BETTY BORELLI
Eleventh Respondent:	MICHAEL MARTIN BORELLI
Twelfth Respondent:	BUTT PASTORAL CO PTY LTD ACN 096 663 857
Thirteenth Respondent:	DAVID GRAHAM CAIRNS
Fourteenth Respondent:	KEVIN HERBERT CAIRNS
Fifteenth Respondent:	ANN MARIE COWAN
Sixteenth Respondent:	JOHN MAXWELL COWAN
Seventeenth Respondent:	ANNE VICTORIA FINLAY
Eighteenth Respondent:	PETER JOHN FINLAY
Nineteenth Respondent:	BERYL MARGARET GODFREY
Twentieth Respondent:	JOHN LLOYD GODFREY
Twenty-First Respondent:	PETER JOHN HALL
Twenty-Second Respondent:	ANDREW JAMES HOLDEN
Twenty-Third Respondent	MARGARET ANN HOLDEN
Twenty-Fourth Respondent:	ROBERT JAMES HOLDEN
Twenty-Fifth Respondent:	SHARON JEAN JONSSON
Twenty-Sixth Respondent:	TREVOR NORMAN JONSSON
Twenty-Seventh Respondent:	JOHN FREDERIC LUTHER
Twenty-Eighth Respondent:	DONALD STUART MACLEAN
Twenty-Ninth Respondent:	IAN JAMES MARSTERSON
Thirtieth Respondent:	JOSEPH JOHN MARSTERSON
Thirty-First Respondent:	KENNETH EDWARD MARSTERSON
Thirty-Second Respondent:	BRENDAN VINCENT MCNAMARA
Thirty-Third Respondent:	JANE BEATRICE MCNAMARA
Thirty-Fourth Respondent:	PAUL AUGUSTINE MCNAMARA
Thirty-Fifth Respondent:	PAUL GREGORY MCNAMARA
Thirty-Sixth Respondent:	CHARLES DAVID MORTON
Thirty-Seventh Respondent:	GERALDINE MURPHY
Thirty-Eighth Respondent:	JOHN LETHBRIDGE MURPHY
Thirty-Ninth Respondent:	OLDRON PTY LTD ACN 010 920 939
Fortieth Respondent:	GRAHAM WAYNE PEAGHAM
Forty-First Respondent:	KAY ELAINE SULLIVAN
Forty-Second Respondent:	CRAIG ALLAN THOMASSON
Forty-Third Respondent:	JANELLE ROBYN THOMASSON
Forty-Fourth Respondent:	ROGER TREHERNE UNDERWOOD
Forty-Fifth Respondent:	ARTHUR JOHN WEBB
Forty-Sixth Respondent:	KEVIN WAYNE WEBB
Forty-Seventh Respondent:	ROBERT MICHAEL HERROD
Forty-Eighth Respondent:	GLYNIS MARGARET HERROD
Forty-Ninth Respondent:	DAVID FRANCIS JONES
Fiftieth Respondent:	DONNA MARIE JONES
Fifty-First Respondent:	WILLIAM ERNEST STOCK