Singleton on behalf of the Yirrganydji Peoples v State of Queensland
[2021] FCA 316
FEDERAL COURT OF AUSTRALIA
Singleton on behalf of the Yirrganydji Peoples v State of Queensland [2021] FCA 316
File numbers: QUD 14 of 2019
QUD 337 of 2015
QUD 692 of 2016
QUD 21 of 2019
QUD 23 of 2019Judgment of: CHARLESWORTH J Date of judgment: 1 April 2021 Catchwords: NATIVE TITLE – multiple overlapping claims – parties entering a Deed providing for a procedure for the resolution of the overlaps – parties obtaining orders by consent for the appointment of two referees pursuant to s 54A of the Federal Court Act 1976 (Cth) and r 28.61 of the Federal Court Rules 2011 (Cth) – referees providing answers to three referred questions in a report provided to the Court – application by the State of Queensland for orders adopting the report in each proceeding – whether referees exceeded their authority by providing a report containing reasons for their opinions and certain intermediary findings of fact – whether the report is “invalid” in part – whether the reasons for the referees’ opinions form a part of the “report” for the purpose of s 54A(3) and r 28.67 – whether the report should be adopted in the Court’s discretion – consideration of any prejudice to an amended claim foreshadowed by a party yet to be formulated and commenced – consideration of nature and cause of the asserted prejudice – relevance of parties’ contractual obligations to withdraw their claims to the extent that they are inconsistent with the referees’ findings
PRACTICE AND PROCEDURE – whether a referees’ report provided in accordance with s 54A(1) of the Federal Court Act 1976 (Cth) can and should be adopted in the exercise of the discretion conferred under s 54A(3) of the Act or r 28.67 of the Federal Court Rules 2011 (Cth)
PRACTICE AND PROCEDURE –documents provided to referees in the course of an inquiry subject to an implied undertaking of the kind discussed in Home Office v Harman [1983] 1 AC 280 limiting the use to which the documents may be put – whether orders should be made having the effect of releasing the parties from any such undertaking
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37N, 54A
Native Title Act 1993 (Cth) ss 61, 67, 87, 223
Federal Court Rules 1979 (Cth) O72A r 11
Federal Court Rules 2011 (Cth) rr 1.34, 1.35, 2.31, 2.32, 20.03, 28.61, 28.65, 28.66, 28.67
Supreme Court Rules 1970 (NSW) r 13
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Buckley v Bennell Design & Construction Pty Ltd (1978) 140 CLR 1
Chocolate Factory Apartments v Westpoint Finance & Ors [2005] NSWSC 784
Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588,
CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) (2018) 268 FCR 590
Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; 325 ALR 213
Home Office v Harman [1983] 1 AC 280
Kadam v MiiResorts Group 1 Pty Ltd (No 4) (2017) 252 FCR 298
Kline v Official Secretary to the Governor-General (2013) 249 CLR 645
Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899
Mundraby on behalf of the Combined Mandingalbay Yidinji-Gunggandji People v State of Queensland [2012] FCA 1039
Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109
Murgha on behalf of the Combined Gunggandji Claim v State of Queensland [2011] FCA 1511
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Sheehan v Lloyds Names Munich Re Syndicate [2017] FCA 1340
Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728
VoR Environmental Australia Pty Limited v Taset Inc (No 2) [2019] FCA 1094
Division: General Division Registry: Queensland Number of paragraphs: 186 Date of hearing: 15 and 16 December 2020 QUD 14 of 2019 Counsel for the Applicants: Mr S Keim with Ms A English
15 December and 16 DecemberSolicitor for the Applicants: Atherton Tablelands Law Counsel for the First Respondent: Ms N Kidson QC with Ms A Wilson
15 December and 16 DecemberSolicitor for the First Respondent: Crown Law Counsel for the Fourth, Fifth, Sixth and Eighth Respondents: Ms S Addo represented the Fourth, Fifth, Sixth and Eighth Respondents
15 December and 16 DecemberCounsel for the Ninth and Tenth Respondents: Mr D Yarrow with Ms S Forrest
15 December and 16 DecemberSolicitor for the Ninth and Tenth Respondents: P & E Law QUD 337 of 2015 Counsel for the Applicant: Mr S Keim with Ms A English
15 December and 16 DecemberSolicitor for the Applicant: Atherton Tablelands Law Counsel for the First Respondent: Ms N Kidson QC with Ms A Wilson
15 December and 16 DecemberSolicitor for the First Respondent: Crown Law Counsel for the Second Respondent: Mr M McKechnie with Mr D Welsh
15 December and 16 DecemberSolicitor for the Second Respondent: Australian Government Solicitor Counsel for the Eighth Respondent: Mr D Yarrow with Ms S Forest
15 December and 16 DecemberSolicitor for the Eighth Respondent P & E Law QUD 692 of 2016 Counsel for the Applicant: Mr G Bell
15 December
Mr G Del Villar QC with Mr G Bell
16 DecemberSolicitor for the Applicant: North Queensland Land Council Counsel for the First Respondent: Ms N Kidson QC with Ms A Wilson
15 December and 16 DecemberSolicitor for the First Respondent: Crown Law Counsel for the Second Respondent: Mr M McKechnie with Mr D Welsh
15 December and 16 DecemberSolicitor for the Second Respondent: Australian Government Solicitor Counsel for the Sixth and Seventh Respondent: Ms S Addo represented the Sixth and Seventh Respondents
15 December and 16 DecemberQUD 21 of 2019 Counsel for the Applicant: Ms S Addo represented the Applicant
15 December and 16 DecemberCounsel for the First Respondent: Ms N Kidson QC with Ms A Wilson
15 December and 16 DecemberSolicitor for the First Respondent: Crown Law Counsel for the Second Respondent: Mr M McKechnie with Mr D Welsh
15 December and 16 DecemberSolicitor for the Second Respondent:
Australian Government Solicitor Counsel for the Sixth and Seventh Respondents: Mr D Yarrow with Ms S Forrest
15 December and 16 DecemberSolicitor for the Sixth and Seventh Respondents: P & E Law Counsel for the Tenth and Eleventh Respondents:
Mr G Bell
15 December
Mr G Del Villar QC with Mr G Bell
16 DecemberSolicitor for the Tenth and Eleventh Respondent Respondents: North Queensland Land Council Counsel for the Thirteenth, Fourteenth and Fifteenth Respondents: Mr S Keim with Ms A English
15 December and 16 DecemberSolicitor for the Thirteenth, Fourteenth and Fifteenth Respondents: Atherton Tablelands Law QUD 23 of 2019 Counsel for the Applicant: Mr D Yarrow with Ms S Forrest
15 December and 16 DecemberSolicitor for the Applicant: P & E Law Counsel for the First Respondent: Ms N Kidson QC with Ms A Wilson
15 December and 16 DecemberSolicitor for the First Respondent: Crown Law Counsel for the Second Respondent: Mr M McKechnie with Mr D Welsh
15 December and 16 DecemberSolicitor for the Second Respondent: Australian Government Solicitor Counsel for the Fourth, Fifth and Sixth Respondents: Ms S Addo represented the Fourth, Fifth and Sixth Respondents
15 December and 16 DecemberCounsel for the Seventh, Ninth and Eleventh Respondents:
Mr G Bell
15 December
Mr G Del Villar QC with Mr G Bell
16 DecemberSolicitor for the Seventh, Ninth and Eleventh Respondents:
North Queensland Land Council Counsel for the Twelfth, Thirteenth and Fourteenth Respondents: Mr S Keim with Ms A English
15 December and 16 DecemberSolicitor for the Twelfth, Thirteenth and Fourteenth Respondents: Atherton Tablelands Law ORDERS
QUD 14 of 2019 BETWEEN: JEANETTE SINGLETON, KERRI SHEPPARD, AND
GEORGE SKEENE ON BEHALF OF THE YIRRGANYDJI PEOPLES #1Applicant
AND: STATE OF QUEENSLAND
First Respondent
CAIRNS REGIONAL COUNCIL
Second Respondent
DOUGLAS SHIRE COUNCIL (and others named in Schedule A)
Third Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.Pursuant to r 28.67 of the Federal Court Rules 2011 (Cth), the whole of the Report of the referees, the Hon John Dowsett AM QC and Dr Paul Burke dated 6 March 2020 provided in accordance with orders of Robertson J on 5 April 2019 (as amended) is adopted for the purpose of resolving the questions referred to the referees.
2.For the purposes of r 2.32, leave be granted to any non-party to inspect the Report upon any application made pursuant to r 2.32(4) of the Rules.
3.The State of Queensland is released from any implied undertaking not to use the following documents except in particular proceedings and (to avoid doubt) the documents may be used by the State for purposes including the assessment of whether the requirements of s 223(1)(a) and (b) of the Native Title Act 1993 (Cth) are satisfied in relation to this or any other proceeding:
Document Filed in Filing date Report of Dr Sandra Pannell, “Expert Report”, July 2019 QUD692/2016 15.04.2020 Report of Dr Sandra Pannell, “Gimuy Walubara Yidinji: Assessment/Draft Connection Report”, 2008 QUD692/2016 15.04.2020 Report of Kim McCaul, “Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim”, 10 February 2015 forming annexure GMB9 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Kara Dunn, “Cairns Regional Claim Group Genealogies, Additional Information to accompany Appendix 5 to McCaul, K. March 2015, Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim: A report to the North Queensland Land Council”, April 2017 forming annexure GMB10 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Peter Blackwood, “Revised Expert Anthropological Report”, 8 August 2019 QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 1, Part 1”, 2013a. QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 2, Part 2”, 2013b. QUD14/2019, QUD337/2015 20.04.2020 Joint Report of Dr Fiona Powell and Dr Philip Clarke, “Anthropological Report for the Cairns Regional Inquiry”, 22 July 2019 (as corrected 2 August 2019) QUD23/2019 15.04.2020 Dr Fiona Powell and Dr Philip Clarke, “Addendum to the Clarke & Powell Report, prepared for the Cairns Regional Inquiry”, 7 August 2019 QUD23/2019 15.04.2020 Joint Report of Dr Deane Fergie and Mr Ray Wood, “Consideration of the Native Title of the Cairns ‘Study Area’ at Sovereignty”, 2 August 2019 QUD21/2019 15.04.2020 4.The applicant is to make no amendment to the originating application except with the leave of the Court.
5.The applicant’s interlocutory application filed on 31 July 2020 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 337 of 2015 BETWEEN: JEANETTE SINGLETON, KERRI SHEPPARD AND GEORGE SKEENE ON BEHALF OF THE YIRRGANYDJI PEOPLES #2
Applicant
AND: STATE OF QUEENSLAND
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
CAIRNS REGIONAL COUNCIL
(and others named in Schedule B)Third Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.Pursuant to r 28.67 of the Federal Court Rules 2011 (Cth), the whole of the Report of the referees, the Hon John Dowsett AM QC and Dr Paul Burke dated 6 March 2020 provided in accordance with orders of Robertson J on 5 April 2019 (as amended) is adopted for the purpose of resolving the questions referred to the referees.
2.For the purposes of r 2.32, leave be granted to any non-party to inspect the Report upon any application made pursuant to r 2.32(4) of the Rules.
3.The State of Queensland is released from any implied undertaking not to use the following documents except in particular proceedings and (to avoid doubt) the documents may be used by the State for purposes including the assessment of whether the requirements of s 223(1)(a) and (b) of the Native Title Act 1993 (Cth) are satisfied in relation to this or any other proceeding:
Document Filed in Filing date Report of Dr Sandra Pannell, “Expert Report”, July 2019 QUD692/2016 15.04.2020 Report of Dr Sandra Pannell, “Gimuy Walubara Yidinji: Assessment/Draft Connection Report”, 2008 QUD692/2016 15.04.2020 Report of Kim McCaul, “Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim”, 10 February 2015 forming annexure GMB9 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Kara Dunn, “Cairns Regional Claim Group Genealogies, Additional Information to accompany Appendix 5 to McCaul, K. March 2015, Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim: A report to the North Queensland Land Council”, April 2017 forming annexure GMB10 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Peter Blackwood, “Revised Expert Anthropological Report”, 8 August 2019 QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 1, Part 1”, 2013a. QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 2, Part 2”, 2013b. QUD14/2019, QUD337/2015 20.04.2020 Joint Report of Dr Fiona Powell and Dr Philip Clarke, “Anthropological Report for the Cairns Regional Inquiry”, 22 July 2019 (as corrected 2 August 2019) QUD23/2019 15.04.2020 Dr Fiona Powell and Dr Philip Clarke, “Addendum to the Clarke & Powell Report, prepared for the Cairns Regional Inquiry”, 7 August 2019 QUD23/2019 15.04.2020 Joint Report of Dr Deane Fergie and Mr Ray Wood, “Consideration of the Native Title of the Cairns ‘Study Area’ at Sovereignty”, 2 August 2019 QUD21/2019 15.04.2020 4.The applicant is to make no amendment to the originating application except with the leave of the Court.
5.The applicant’s interlocutory application filed on 31 July 2020 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
ORDERS
QUD 692 of 2016 BETWEEN: TYRONE CANNON, WILLIAM BRIM, JEANETTE SINGLETON AND GLEN WILLIAMS ON BEHALF OF THE CAIRNS REGIONAL CLAIM GROUP
ApplicantAND: STATE OF QUEENSLAND
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentCAIRNS REGIONAL COUNCIL
(and others named in Schedule C)
Third Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.Pursuant to r 28.67 of the Federal Court Rules 2011 (Cth), the whole of the Report of the referees, the Hon John Dowsett AM QC and Dr Paul Burke dated 6 March 2020 provided in accordance with orders of Robertson J on 5 April 2019 (as amended) is adopted for the purpose of resolving the questions referred to the referees.
2.For the purposes of r 2.32, leave be granted to any non-party to inspect the Report upon any application made pursuant to r 2.32(4) of the Rules.
3.The State of Queensland is released from any implied undertaking not to use the following documents except in particular proceedings and (to avoid doubt) the documents may be used by the State for purposes including the assessment of whether the requirements of s 223(1)(a) and (b) of the Native Title Act 1993 (Cth) are satisfied in relation to this or any other proceeding:
Document Filed in Filing date Report of Dr Sandra Pannell, “Expert Report”, July 2019 QUD692/2016 15.04.2020 Report of Dr Sandra Pannell, “Gimuy Walubara Yidinji: Assessment/Draft Connection Report”, 2008 QUD692/2016 15.04.2020 Report of Kim McCaul, “Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim”, 10 February 2015 forming annexure GMB9 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Kara Dunn, “Cairns Regional Claim Group Genealogies, Additional Information to accompany Appendix 5 to McCaul, K. March 2015, Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim: A report to the North Queensland Land Council”, April 2017 forming annexure GMB10 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Peter Blackwood, “Revised Expert Anthropological Report”, 8 August 2019 QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 1, Part 1”, 2013a. QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 2, Part 2”, 2013b. QUD14/2019, QUD337/2015 20.04.2020 Joint Report of Dr Fiona Powell and Dr Philip Clarke, “Anthropological Report for the Cairns Regional Inquiry”, 22 July 2019 (as corrected 2 August 2019) QUD23/2019 15.04.2020 Dr Fiona Powell and Dr Philip Clarke, “Addendum to the Clarke & Powell Report, prepared for the Cairns Regional Inquiry”, 7 August 2019 QUD23/2019 15.04.2020 Joint Report of Dr Deane Fergie and Mr Ray Wood, “Consideration of the Native Title of the Cairns ‘Study Area’ at Sovereignty”, 2 August 2019 QUD21/2019 15.04.2020
4.The applicant is to make no amendment to the originating application except with the leave of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 21 of 2019 BETWEEN: JENNIFER MARTENS, SAM ADDO AND SAMMUT GARLING ON BEHALF OF THE KUNGGANDJI GURRABUNA PEOPLE OF KAMOI (KIMOI OR KIMUY)
ApplicantAND: STATE OF QUEENSLAND
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
CAIRNS REGIONAL COUNCIL
(and others named in Schedule D)Third Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.Pursuant to r 28.67 of the Federal Court Rules 2011 (Cth), the whole of the Report of the referees, the Hon John Dowsett AM QC and Dr Paul Burke dated 6 March 2020 provided in accordance with orders of Robertson J on 5 April 2019 (as amended) is adopted for the purpose of resolving the questions referred to the referees.
2.For the purposes of r 2.32, leave be granted to any non-party to inspect the Report upon any application made pursuant to r 2.32(4) of the Rules.
3.The State of Queensland is released from any implied undertaking not to use the following documents except in particular proceedings and (to avoid doubt) the documents may be used by the State for purposes including the assessment of whether the requirements of s 223(1)(a) and (b) of the Native Title Act 1993 (Cth) are satisfied in relation to this or any other proceeding:
Document Filed in Filing date Report of Dr Sandra Pannell, “Expert Report”, July 2019 QUD692/2016 15.04.2020 Report of Dr Sandra Pannell, “Gimuy Walubara Yidinji: Assessment/Draft Connection Report”, 2008 QUD692/2016 15.04.2020 Report of Kim McCaul, “Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim”, 10 February 2015 forming annexure GMB9 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Kara Dunn, “Cairns Regional Claim Group Genealogies, Additional Information to accompany Appendix 5 to McCaul, K. March 2015, Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim: A report to the North Queensland Land Council”, April 2017 forming annexure GMB10 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Peter Blackwood, “Revised Expert Anthropological Report”, 8 August 2019 QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 1, Part 1”, 2013a. QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 2, Part 2”, 2013b. QUD14/2019, QUD337/2015 20.04.2020 Joint Report of Dr Fiona Powell and Dr Philip Clarke, “Anthropological Report for the Cairns Regional Inquiry”, 22 July 2019 (as corrected 2 August 2019) QUD23/2019 15.04.2020 Dr Fiona Powell and Dr Philip Clarke, “Addendum to the Clarke & Powell Report, prepared for the Cairns Regional Inquiry”, 7 August 2019 QUD23/2019 15.04.2020 Joint Report of Dr Deane Fergie and Mr Ray Wood, “Consideration of the Native Title of the Cairns ‘Study Area’ at Sovereignty”, 2 August 2019 QUD21/2019 15.04.2020
4.The applicant is to make no amendment to the originating application except with the leave of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 23 of 2019 BETWEEN: GERALD EDWARD FOURMILE, GREGORY FOURMILE, SEITH HARDY FOURMILE, PETER HYDE, HENRIETTA MARRIE, AND ALLAN OLIVER ON BEHALF OF THE GIMUY WALUBARA YIDINJI PEOPLE
ApplicantAND: STATE OF QUEENSLAND
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
CAIRNS REGIONAL COUNCIL
(and others named in Schedule E)Third Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.Pursuant to r 28.67 of the Federal Court Rules 2011 (Cth), the whole of the Report of the referees, the Hon John Dowsett AM QC and Dr Paul Burke dated 6 March 2020 provided in accordance with orders of Robertson J on 5 April 2019 (as amended) is adopted for the purpose of resolving the questions referred to the referees.
2.For the purposes of r 2.32, leave be granted to any non-party to inspect the Report upon any application made pursuant to r 2.32(4) of the Rules.
3.The State of Queensland is released from any implied undertaking not to use the following documents except in particular proceedings and (to avoid doubt) the documents may be used by the State for purposes including the assessment of whether the requirements of s 223(1)(a) and (b) of the Native Title Act 1993 (Cth) are satisfied in relation to this or any other proceeding:
Document Filed in Filing date Report of Dr Sandra Pannell, “Expert Report”, July 2019 QUD692/2016 15.04.2020 Report of Dr Sandra Pannell, “Gimuy Walubara Yidinji: Assessment/Draft Connection Report”, 2008 QUD692/2016 15.04.2020 Report of Kim McCaul, “Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim”, 10 February 2015 forming annexure GMB9 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Kara Dunn, “Cairns Regional Claim Group Genealogies, Additional Information to accompany Appendix 5 to McCaul, K. March 2015, Anthropology Report for a Djabugay-Bulway-Yirrganydji Native Title Claim: A report to the North Queensland Land Council”, April 2017 forming annexure GMB10 to the affidavit of Mr Bell QUD692/2016 29.04.2020 Report of Peter Blackwood, “Revised Expert Anthropological Report”, 8 August 2019 QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 1, Part 1”, 2013a. QUD14/2019, QUD337/2015 20.04.2020 Report of Peter Blackwood, “Connection Report Yirrganydji (lrukandji) People Native Title Claim (QC2012/015, QUD602/2012) Instalment 2, Part 2”, 2013b. QUD14/2019, QUD337/2015 20.04.2020 Joint Report of Dr Fiona Powell and Dr Philip Clarke, “Anthropological Report for the Cairns Regional Inquiry”, 22 July 2019 (as corrected 2 August 2019) QUD23/2019 15.04.2020 Dr Fiona Powell and Dr Philip Clarke, “Addendum to the Clarke & Powell Report, prepared for the Cairns Regional Inquiry”, 7 August 2019 QUD23/2019 15.04.2020 Joint Report of Dr Deane Fergie and Mr Ray Wood, “Consideration of the Native Title of the Cairns ‘Study Area’ at Sovereignty”, 2 August 2019 QUD21/2019 15.04.2020
4.The applicant is to make no amendment to the originating application except with the leave of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
The applicants in these five proceedings seek determinations of native title under the Native Title Act 1993 (Cth) (NT Act) in relation to overlapping areas in and around the city of Cairns. The State of Queensland is the first respondent in each of the five proceedings.
The claims are 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). On the originating applications as they presently stand, the four claim groups each assert that they possess native title rights and interests in the land or waters of their respective claim areas derived from their traditional laws and customs. They each assert that their apical ancestors held these interests before the acquisition of sovereignty and the subsequent establishment of the Cairns township in 1876 (the date of effective sovereignty).
Section 54A(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) relevantly provides that the Court may refer one or more questions arising in a proceeding in the Court to a referee for inquiry and report in accordance with the Federal Court Rules 2011 (Cth). There is a similar referral power in r 28.61 of the Rules. Following a mediation in 2018 and 2019, the applicants and four Aboriginal respondents (together, the Aboriginal parties) agreed upon a protocol for the resolution of questions arising in each proceeding for the stated purpose of resolving the overlapping claims. In accordance with the agreed protocol, the Aboriginal parties jointly applied to the Court for orders under s 54A(1) of the FCA Act and r 28.61 of the Rules, expressed in relevantly the same terms in each proceeding.
By consent orders made on 5 April 2019 in each matter Robertson J referred three questions to a senior referee and an anthropological referee for inquiry and report (the referral orders). The referred questions were in terms framed by the Aboriginal parties. They were directed to the issue as to which group or groups held native title rights and interests in a specified area immediately before the acquisition of sovereignty and to the identification of the traditional owners’ apical ancestors. Following an inquiry, the referees gave their opinion on those questions in a report provided to the Court on 6 March 2020 (the Report).
Section 54A(3) of the FCA Act provides:
(3)If a report of a referee under subsection (1) is provided to the Court, the Court may deal with the report as it thinks fit, including by doing the following:
(a)adopting the report in whole or in part;
(b)varying the report;
(c)rejecting the report;
(d)making such orders as the Court thinks fit in respect of any proceeding or question referred to the referee.
To the same or similar effect, r 28.67 of the Rules provides:
28.67 Proceeding on report
(1)After a report has been given to the Court, a party may, on application, ask the Court to do any of the following:
(a)adopt, vary or reject the report, in the whole or in part;
(b)require an explanation by way of a further report by the referee;
(c)remit on any ground, for further consideration by the referee, the whole or any part of the matter that was referred to the referee for inquiry and report;
(d)decide any matter on the evidence taken before the referee, with or without additional evidence;
(e)give judgment or make an order in relation to the proceeding or question.
(2) A party must not adduce in the Court evidence given in an inquiry.
The Court now has before it a series of interlocutory applications filed by the State. By those applications, the State seeks an order in each proceeding that the Report be adopted under r 28.67 of the Rules. That part of the State’s application is opposed by the Yirrganydji and Kunggandji Gurrabuna applicants. It is not opposed by the Gimuy Walubara Yidinji applicant nor by the Cairns Regional Claim Group applicant.
In addition, the Yirrganydji applicants have filed their own interlocutory applications seeking declaratory relief concerning the “validity” of the Report, or at least a part of it.
The issue arising on these applications will be referred to as the Adoption issue.
The State also applies for orders concerning the use to which it might put 10 documents that were received by the referees (being expert reports or addendums thereto), and orders to the effect that the Report be “taken to be read in open court”. The intent behind those applications is to relieve the State from an implied undertaking that might prevent its use of the documents and the Report to aid in its assessment of each of the claims against the requirements of s 223 of the NT Act. I will refer to that as the Undertaking issue.
For the reasons given below, I have accepted the State’s arguments in respect of both the Adoption issue and the Undertaking issue and so will proceed to make orders substantially in the terms sought on the State’s interlocutory applications. The interlocutory applications filed by the Yirrganydji applicants should be dismissed.
Before proceeding further it is necessary to summarise the events leading up to the provision of the Report and the referees’ answers to the referred questions.
DEED AND ORDERS
On 22 May 2019, the Aboriginal parties entered into an agreement titled “Protocol Deed”, by which they agreed to be bound to a protocol for the progression of each matter. The salient features of the protocol were that the Aboriginal parties would approach the Court for orders (in terms of draft orders annexed to the Protocol Deed), providing for the referral of questions to two referees chosen by them. The parties’ draft orders identified the two referees as the President of the National Native Title Tribunal the Hon John Dowsett AM QC and an anthropologist, Dr Paul Burke. The Aboriginal parties further agreed that they would seek an adjournment in each proceeding to enable the protocol to be implemented. The Aboriginal parties agreed upon a date by which the referees’ report was to be provided to the Court, being 20 December 2019.
Clause 3 of the Protocol Deed provided:
3. Use of the Final Report
3.1 The Parties agree to be bound by the findings of the referees’ report such that:
(a)each of them will discontinue their claims to native title (or withdraw any assertions of native title) that are inconsistent with those findings;
(b)each of the Applicants will amend the claim boundary of their native title determination applications to remove any territorial claim that is inconsistent with those findings;
(c)no party will oppose any application by any other party to amend their respective determination application/s consistently with those findings; and
(d)no party will object to a determination of native title in terms that are substantially consistent with those findings.
A note to the referral orders recorded that the Aboriginal parties had agreed to a process “for the resolution of their overlapping claims” and that they had embodied that agreement in the Protocol Deed. The Court’s note is in the same terms as a note appearing on the draft orders and so reflects the Aboriginal parties’ joint purpose for seeking the referral orders.
The questions referred to the referees were set out in Annexure 1 to the referral orders. They were expressed as follows:
1.Immediately before the acquisition of sovereignty, what group or groups held native title rights and interests in the specified area outlined in the map attached to this Annexure as Attachment 1?
(In answering that question, have particular regard to the area that is subject to an overlap between the proceedings QUD23/2019, QUD14/2019, QUD337/2015, and part of QUD21/2019, and consider the relevance, if any, of a moiety system at the time immediately before sovereignty and the possible existence of any regional society. If more than one group is found to have interests in the specified area, then identify the relevant areas on a map.)
2.What was the normative system of law and custom pursuant to which that landholding group or those landholding groups held native title rights and interests?
3.If the normative system of law and custom was based on filiation, which particular individuals are likely to have occupied the specified area at a time closest to the acquisition of sovereignty (the apical ancestors)?
(In answering the question, identify the particular individuals earliest in time for whom evidence of occupation of the specified area exists, and identify which landholding group or groups they belonged to.)
The area specified in the first order was referred to by the referees as the “study area”. It is defined by a red boundary on a map forming Schedule 1 to the Report and now forming Schedule 1 to these reasons. The map consists of two pages, the second page depicting the study area in more detail.
The study area encompasses the city of Cairns and its surrounds. Its northern boundary runs along the Barron River from Freshwater Creek to the mouth of the river and extending a short distance into the estuarine waters of Trinity Inlet. The eastern boundary runs south, along the eastern edge of Trinity Inlet to Mackey Creek to just north of Gordonvale. From there, the study area extends west as far as the ridge formed by the Isley Hills and along the western bank of Lake Morris, north to Freshwater Creek.
The first page of the map also shows the boundaries of the claims made in each of the five proceedings and reveals the extent of the territorial overlaps between them.
As can be seen, the whole of the claim area for the Gimuy Walubara Yidinji People is encompassed by the study area. The Gimuy Walubara Yidinji People claim to be a traditional society including Yidinji patriclans.
The study area is wholly overlapped by the Kunggandji Gurrabuna People claim, which extends further north up the coast and offshore.
The Cairns Regional Claim Group claim overlaps with the Kunggandji Gurrabuna claim in the Redlynch area and then extends further inland. The Cairns Regional Claim Group includes Djabugay, Buluwandji, Nyakali, Guluy, and Yirrganydji component groups.
The two Yirrganydji claims overlap with the Kunggandji Gurrabuna claim and the Gimuy Walubara Yidinji claim. The claim in QUD14/2019 (known as Yirrganydji # 1) includes a number of discrete parcels of land in and around Cairns. The claim in QUD337/2015 (known as Yirrganydji # 2) surrounds those parcels within the study area and extends to encompass the whole of the city of Cairns and an area to the south, including Mount Sheridan.
The second page of the map depicts the northern part of the study area in more detail.
INQUIRY
Each of the applicants, the State, the Commonwealth and the Aboriginal respondents participated in the referees’ inquiry and were legally represented for that purpose. The Yirrganydji and Cairns Regional Claim Group applicants presented their cases jointly (albeit with some divergences) and were represented by the same legal practitioners for that purpose.
Paragraph 4 of the referral orders provided that the referees may make such directions as the referees considered appropriate as to the conduct of the inquiry and otherwise conduct the inquiry in accordance with r 28.65 of the Rules. Rule 28.65(4) provides that a referee is not bound in the inquiry by the rules of evidence and may be informed in any way that the referee thinks fit. The inquiry proceeded on the basis that the rules of evidence did not apply.
Rule 28.65(7) requires that each party to an inquiry must, before the time fixed by the referee conducting the inquiry, give a brief statement of the findings of fact and law contended by them to the referees and any other party to the inquiry. In their respective statements, the claimant parties each asserted facts in support of their ultimate contention that they should be identified as the group that held native title rights and interests in the areas to which their claims related immediately before the acquisition of sovereignty. The various applicants pointed to records of ancestors either born in the study area before effective sovereignty or in occupation of land in the study in the decades following.
On 16 July 2019 the referees provided a ruling in relation to the interpretation of the third question contained in the referral. No party submits that the referees’ interpretation of that question was wrong. The effect of the ruling is discussed at [95] of these reasons.
The applicants relied upon expert reports including for the purposes of establishing the proposition that their respective claim groups held native title rights and interests in the study area immediately before the acquisition of sovereignty. They are:
·a joint report of Dr Fiona Powell and Dr Philip Clarke dated 22 July 2019 as corrected on 2 August 2019 and an addendum dated 7 August 2019 (relied upon by the Gimuy Walubara Yidinji applicant);
·a report of Dr Sandra Pannell dated July 2019 (relied upon by the Cairns Regional Claim Group and Yirrganydji applicants);
·a report of Mr Peter Blackwood dated 8 August 2019 (relied upon by the Cairns Regional Claim Group and Yirrganydji applicants); and
·a joint report of Dr Deane Fergie and Mr Ray Wood dated 2 August 2019 (relied upon by the Kunggandji Gurrabuna applicant).
In addition, a number of other reports that were referred to in the referee Report have subsequently been filed in the proceedings. These are:
·a prior report of Dr Pannell dated 2008 (filed in the Cairns Regional Claim Group claim);
·a report of Mr Kim McCaul dated 10 February 2015 with additional information in relation to an annexure provided in a report of Ms Kara Dunn dated April 2017 (filed in the Cairns Regional Claim Group claim); and
·a two-part report of Mr Peter Blackwood dated 2013 (filed in the Yirrganydji claims).
A conference of experts was held on 11 August 2019. The experts then gave concurrent oral evidence and were cross-examined by Counsel for the participating parties over two days.
The participating parties then provided substantial written submissions. Reply submissions were subsequently provided by the Cairns Regional Claim Group and the Yirrganydji and Gimuy Walubara Yidinji applicants. The referees identified six supplementary questions and sought submissions from the participating parties on them.
Paragraph 6 of the referral orders required the referees to provide a draft report to the participating parties and to provide those parties with the opportunity to provide written submissions in response to it.
A draft report was circulated on 24 December 2019 and the participating parties were given the opportunity to provide submissions on the draft. A second draft report was circulated on 25 February 2020 and the participating parties were given the opportunity to provide further submissions in relation to the proposed amendments.
The final report was provided to the Court on 6 March 2020, the Court having granted extensions of earlier deadlines for its completion.
REPORT
The Report consists of more than 200 pages. It annexes 21 schedules.
At page 210 of the Report there appears the heading “ANSWERS TO THE INQUIRY QUESTIONS”. The first two questions were answered as follows:
Question 1
[559]Immediately before the acquisition of sovereignty, the groups holding native title rights and interests in the specified area outlined in the map attached to annexure 1 to the order of Robertson J made on 5 April 2019 were:
ŸYidinji totemic patriclans; and
ŸDjabugay (including Bulway) and/or Yirrganydji totemic patriclans;
[560]The parties are agreed, and the Referees conclude that the ancestors of the groups identified above, asserting native title rights to the study area, were within the same regional society at effective sovereignty. There was a moiety system at the time immediately before sovereignty, the significance of which is fairly demonstrated by the following extract from submissions made on behalf of the State:
The system of named moieties inherited through the father was relevant to both social organisation and local organisation. Each moiety had a number of totems associated with it which facilitated regional links. Marriage rules specifying the preferred kinship category of spouses meant that one could not marry a person in the same moiety. Because of the patrilineal inheritance of named moieties, there were likely to have been a chequerboard of clan areas continually associated with one of the two moieties. At the broader level of areas associated with a particular language variety, there were no separate, amalgamated areas belonging to a single moiety, rather a chequerboard of clan areas with different moieties.
[Footnotes omitted.]
Question 2
[561]The normative system of law and custom pursuant to which those land holding groups held native title rights and interests is agreed as follows and we find accordingly:
Ÿmutual recognition of patriclan estates;
Ÿmutual recognition of the general areas associated with a language variety as identified by the people themselves (as opposed to technical linguistic analysis);
Ÿsocial networks of kin and in-laws extending beyond local groups;
Ÿsocial networks for organising regional events including initiation ceremonies, mortuary rituals, fighting tournaments, feasts of seasonally abundant food and dispute resolution meetings;
Ÿtrading networks;
Ÿrules of succession to the territory of dwindling or extinct patriclans.
[562]These regional social networks were facilitated by a very similar hunter and gatherer economy, a network of pathways, outrigger canoes, shared understandings of message sticks, multilingualism and very similar traditional laws and customs relating to:
Ÿways of naming groups;
Ÿkinship systems and marriage rules;
Ÿa norm of generosity to kin;
Ÿthe partimoiety system and related totems;
Ÿtraditional authority structures;
Ÿthe institution of the healer/sorcerer;
Ÿcosmology of a foundational era in which the foundational beings created the physical and social world;
Ÿrites of passage relating to birth, initiation and death.
In response to Question 3, the referees concluded (at [563]) that the normative system of laws and customs was based in filiation. The persons likely to have occupied the study area at the time closest to the acquisition of sovereignty were then identified in a table which specified the group (defined as a patriclan) to which each person belonged.
Schedule 21 to the Report is a map of the study area showing “indicative internal boundaries”. It may be referred to as the “findings map”. It now appears at Schedule 2 to these reasons.
The findings map graphically depicts the referees’ opinion as to which groups held native title rights and interest at sovereignty in respect of particular parts of the study area. They are:
(1)an area north of Cairns and extending to the northern boundary of the study area described as “Yirrganydji Patriclans”;
(2)a large area encompassing the city of Cairns and extending to the southern and eastern boundaries of the study area, described as “Yidinji Patriclans”;
(3)an area extending to the western boundary of the study area described as “Bulway Djabugay Patriclans” extending northward to border the Yirrganydji Patriclans area and eastward to border the Yidinji Patriclans area; and
(4)an area in the north-west corner of the study area referred known as the “Redlynch Bump”, described as “Redlynch Patriclans”.
The referees’ findings were favourable to the Cairns Regional Claim Group in respect of the Redlynch Bump (being the only part of that claim falling within the study area).
The findings were favourable to the Gimuy Walubara Yidinji applicant in respect of that area described as “Yidinji Patriclans” and the “Bulway Djabugay Patriclans”, but not in respect of the area to the north of their claim determined by the referees to be that of the Yirrganydji Patriclans. The Gimuy Walubara Yidinji applicant does not resist the consequence that the boundary of their claim must be retracted southward in accordance with clause 3 of the Protocol Deed so as to align with the boundaries depicted in the findings map.
The referees’ findings are wholly adverse to the Kunggandji Gurrabuna applicant in that no part of the study area was found to be land in respect of which the Kunggandji Gurrabuna People held native title rights and interests at sovereignty.
The findings are also adverse to the Yirrganydji applicants to the extent that the Yirrganydji Patriclans land identified by the referees does not include southern portions of the Yirrganydji claim areas, particularly those parts encompassing the city of Cairns and an area to the south of the city.
For different reasons, the Kunggandji Gurrabuna applicant and the Yirrganydji applicants resist the contention that the boundaries of their claims must be redrawn so as to accord with the referees’ findings. Those applicants oppose the State’s applications for orders that the Report be adopted.
PRINCIPLES
As Allsop CJ said in Sheehan v Lloyds Names Munich Re Syndicate [2017] FCA 1340 at [9], the purpose of making a referral to a referee under s 54A of the FCA Act or r 28.61 of the Rules is to enable a partial resolution of the dispute. His Honour applied the following passage from Buckley v Bennell Design & Construction Pty Ltd (1978) 140 CLR 1 at 15 (Stephen J):
… such a reference ‘is a species of trial, and the decision is now equivalent to a form of judgment or verdict and not an award’. In such a reference the court’s procedures of adjudication are not abandoned in favour of extra-curial settlement of the dispute by arbitration. Instead, the court directs that, for the better resolution of the particular proceedings initiated before it, resort should be had to this special mode of trial which the legislation has made available.
Rule 28.67 has a predecessor in O72A r 11 of the Federal Court Rules 1979 (Cth) (the former rule). The former rule had a relevant analogue in Pt 72, r 13 of the Supreme Court Rules 1970 (NSW). In Chocolate Factory Apartments v Westpoint Finance & Ors [2005] NSWSC 784, McDougall J (at [7]) distilled the authorities concerning the exercise of the discretion under the New South Wales provision in 15 principles. His Honour’s helpful summary has been adopted with approval by this Court in relation to the FCA Act and the Rules, including by Allsop CJ in Sheehan (and see Kadam v MiiResorts Group 1 Pty Ltd (No 4) (2017) 252 FCR 298, Lee J (at [62]); VoR Environmental Australia Pty Limited v Taset Inc (No 2) [2019] FCA 1094, Lee J (at [29]). They are as follows:
(1)An application under Pt 72 r 13 is not an appeal either by way of hearing de novo or by way of rehearing.
(2)The discretion to adopt, vary or reject the report is to be exercised in a manner consistent with both the object and purpose of the rules and the wider setting in which they take their place. Subject to this, and to what is said in the next two sub paragraphs, it is undesirable to attempt closely to confine the manner in which the discretion is to be exercised.
(3)The purpose of Pt 72 is to provide, where the interests of justice so require, a form of partial resolution of disputes alternative to orthodox litigation, that purpose would be frustrated if the reference were to be treated as some kind of warm up for the real contest.
(4)In so far as the subject matter of dissatisfaction with a report is a question of law, or the application of legal standards to established facts, a proper exercise of discretion requires the judge to consider and determine that matter afresh.
(5)Where a report shows a thorough, analytical and scientific approach to the assessment of the subject matter of the reference, the Court would have a disposition towards acceptance of the report, for to do otherwise would be to negate both the purpose and the facility of referring complex technical issues to independent experts for enquiry and report.
(6)If the referee’s report reveals some error of principle, absence or excessive jurisdiction, patent misapprehension of the evidence or perversity or manifest unreasonableness in fact finding, that would ordinarily be a reason for rejection. In this context, patent misapprehension of the evidence refers to a lack of understanding of the evidence as distinct from the according to particular aspects of it different weight; and perversity or manifest unreasonableness mean a conclusion that no reasonable tribunal of fact could have reached. The test denoted by these phrases is more stringent than ‘unsafe and unsatisfactory’.
(7)Generally, the referee’s findings of fact should not be re-agitated in the Court. The Court will not reconsider disputed questions of fact where there is factual material sufficient to entitle the referee to reach the conclusions he or she did, particularly where the disputed questions are in a technical area in which the referee enjoys an appropriate expertise. Thus, the Court will not ordinarily interfere with findings of fact by a referee where the referee has based his or her findings upon a choice between conflicting evidence.
(8)The purpose of Pt 72 would be frustrated if the Court were required to reconsider disputed questions of fact in circumstances where it is conceded that there was material on which the conclusions could be based.
(9)The Court is entitled to consider the futility and cost of re-litigating an issue determined by the referee where the parties have had ample opportunity to place before the referee such evidence and submissions as they desire.
(10)Even if it were shown that the Court might have reached a different conclusion in some respect from that of the referee, it would not be (in the absence of any of the matters referred to in sub para (6) above) a proper exercise of the discretion conferred by Pt 72 r 13 to allow matters agitated before the referee to be re-explored so as to lead to qualification or rejection of the report.
(11)Referees should give reasons for their opinion so as to enable the parties, the Court and the disinterested observer to know that the conclusion is not arbitrary, or influenced by improper considerations; but that it is the result of a process of logic and the application of a considered mind to the factual circumstances proved. The reasoning process must be sufficiently disclosed so that the Court can be satisfied that the conclusions are based upon such an intellectual exercise.
(12)The right to be heard does not involve the right to be heard twice.
(13)A question as to whether there was evidence on which the referee, without manifest unreasonableness, could have come to the decision to which he or she did come is not raised ‘by a mere suggestion of factual error such that, if it were made by a trial judge, an appeal judge would correct it’. The real question is far more limited: ‘to the situation where it is seriously and reasonably contended that the referee has reached a decision which no reasonable tribunal of fact could have reached; that is, a decision that any reasonable referee would have known was against the evidence and weight of evidence’.
(14)Where, although the referee’s reasons on their face appear adequate, the party challenging the report contends that they are not adequate because there was very significant evidence against the referee’s findings with which the referee did not at all deal, examination of the evidence may be undertaken to show that the reasons were in fact inadequate because they omitted any reference to significant evidence.
(15)Where the court decides that the reasons are flawed, either on their face or because they have been shown not to deal with important matters, the court has a choice. It may decline to adopt the report. Or it may itself look at the detail of the evidence to decide whether or not the expense of further proceedings before the referee (which would be the consequence of non adoption) is justified.
As Lee J said in CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) (2018) 268 FCR 590 at [55] – [56] , unless and until the report of a referee is adopted, it can have no legal effect.
His Honour was not asked to consider a case (such as the present) where the parties have agreed to be contractually bound by the findings of the referee and to take steps to amend their claims in accordance with those findings, irrespective of whether the referees’ findings are adopted by the Court. The Report may well have legal effect as between the Aboriginal parties in the limited sense that its production to the Court may give rise to contractual obligations affecting the future conduct of proceedings. As explained below I consider the existence of the contractual obligations to be a relevant consideration in the exercise of the discretion to adopt the Report.
The Native Title Context
The parties inform the Court that the referral procedures in the FCA Act and the Rules have not previously been utilised in the context of proceedings under the NT Act.
With the unique statutory context in mind, it may be observed that the Protocol Deed and resulting orders were directed to the resolution of two types of dispute.
First, there is what might be described as an inter-proceedings dispute created by the commencement of more than one application for a determination of native title under s 61 of the NT Act relating to the same geographical area. Section 67 of the NT Act requires that the overlapping claims be dealt with in the same proceeding. Should that proceeding go to trial; it would be necessary to resolve the competing pleas that each claim group holds native title rights and interests in the land subject to the relevant overlaps at sovereignty, that being the factual foundation for the assertion of present day rights in each of the originating applications (at least as they are presently framed). Adoption of the Report would wholly resolve that aspect of the dispute because it would eliminate the overlap between the claims as they are presently framed. Claims inconsistent with the adoption would be rendered untenable and so liable to be struck out to the extent of the inconsistency if the originating applications were not amended to accord with the referees’ findings. If the boundaries of the claims were redrawn so as to eliminate the overlaps, s 67 of the NT Act would have no application.
Even in the absence of an overlap, a dispute may arise in each proceeding as to whether the present day claimants hold native title rights and interests in the study area by virtue of their descent from ancestors who held native title rights and interests in the area at sovereignty. Adoption of the Report in each proceeding would resolve that aspect of the dispute in each proceeding in a way that would bind not only each applicant but also each respondent in relation to the resolution of the referred questions, although only in relation to that part of the claimed determination area that falls within the study area. In respect of those inter-parties disputes, it should be noted that the referral orders included an order affording an opportunity to all parties in all proceedings to participate in the referees’ inquiry. It nonetheless remains open to all parties in each action to press for a trial of pre-sovereignty disputed facts relating to land and waters not falling within the study area. And it remains open to all respondents in all proceedings to challenge each applicant’s assertion of continuity of connection in respect of the whole of each claim area, including within the study area.
There is another aspect of the native title context that deserves consideration.
It was common ground at the inquiry that European settlement in and around the study area had rapid and profound consequences for the original Aboriginal occupants from the date of effective sovereignty and in the years that followed. The history of colonialisation in the area is characterised in part by “dispersal” by unlawful killing, dispossession, dislocation and cruelty (including the abduction of an Aboriginal child and retaliatory acts of violence). Against that history of disruption and dislocation, the questions referred to the referees were attended with considerable forensic difficulty. The subject matter of the proceedings is of great significance to the present day claimants. There is no suggestion that the facts asserted on the face of any one of the originating applications are not genuinely advanced.
Given that context, the Aboriginal parties are to be commended for entering into the Protocol Deed as a special mode of trial for resolving their competing claims. The Protocol Deed evidences the Aboriginal parties’ consensus that the referral and adoption procedure was a preferable means of resolving the overlapping claims when compared to a protracted and costly adversarial trial with all of its attendant formality, delay and expense. The likely necessity for a complex adversarial trial of the overlapping claims is a relevant consideration in the exercise of the Court’s discretion as to whether the Report should now be adopted, whether in whole or in part. It is a consideration to be afforded great weight, given that an alternative mode of trial was agreed by the Aboriginal parties to be the most appropriate mechanism for the resolution of the particular disputes to which I have referred.
THE ADOPTION ISSUE
The State seeks an order in each proceeding in the following terms:
An order pursuant to rule 28.67 of the Federal Court Rules 2011 that the Court adopt the whole of the report of the referees, the Hon John Dowsett AM QC and Dr Paul Burke, dated 6 March 2020, given in accordance with orders for referral pursuant to s 54A(1) of the Federal Court of Australia Act 1976 (Cth) made by Robertson J on 5 April 2019.
The Yirrganydji applicants object to the adoption of the Report on the bases set out in notices of objection filed on 15 May 2020. In addition, on 31 July 2020 the Yirrganydji applicants filed an interlocutory application in each of the two Yirrganydji matters seeking declaratory relief in the following terms:
A Declaration under subsection 39B(IA)(c) of the Judiciary Act 1903 the answers to Questions 1, 2 and 3 referred to the President of the National Native Title, John Dowsett AM QC and the anthropological referee, Dr. Paul Burke, for inquiry pursuant to s54A (1) of the Federal Court of Australia Act 1976 (Cth) by order of Robertson J, dated 5 April 2019, that appear at paragraphs [559] to [563] of the Report of the Referees dated 6 March 2020 (Referees Report), constitute the Report for the purposes of Rule 28.67 of the Federal Court Rules 2011 (Report) and that to the extent the associated reasoning in the Referees Report purports to be the Report it is invalid.
The Yirrganydji applicants argue that the Report contains findings about facts and circumstances existing at times after the assertion of sovereignty. They are concerned that the Court’s adoption of the Report as a whole would prejudice their interests in respect of a foreshadowed amended claim, described below. Their principal contention is that the “report” that is the subject of the Court’s adoption power is confined to that part of the Report in which the referees’ ultimate answers to the referred questions are set out (that is, at [559] – [563] of the Report as extracted and summarised at [36] – [37] of these reasons).
The statement of objections and the interlocutory applications of the Yirrganydji applicants give rise to a common question of law going to the proper construction of the relevant provisions of the FCA Act and the Rules. For the reasons explained at [80] – [94] below, I do not accept the submissions of the Yirrganydji applicants on the questions of construction. I consider it unnecessary to decide whether the declarations sought on the Yirrganydji applicants’ interlocutory applications could otherwise have been granted on their terms.
In addition, to the extent that the Yirrganydji applicants raise questions relevant to the exercise of the Court’s discretion, I am not satisfied that the matters raised by them form a proper basis for refusing the State’s applications.
The Kunggandji Gurrabuna applicant objects to the adoption of the Report on multiple bases set out in a statement of objection dated 15 May 2020 and in other documents. As detailed below, the Kunggandji Gurrabuna applicant submits that the referees’ reasoning is flawed and that the procedure adopted by them was unfair. For the reasons explained at [132] – [172], I am not satisfied that the bases for objection advanced by the Kunggandji Gurrabuna applicant (whether considered separately or cumulatively) are sufficient to warrant refusal of the State’s application.
Terms of the Protocol Deed
The issues raised in the objections are to be considered against the context of the Aboriginal parties having entered into the Protocol Deed and so having contracted to consent to the processes for which s 54A(1) of the FCA Act and equivalent rules provide.
By clause 3 of the Protocol Deed the Aboriginal parties agreed to be “bound by the findings of the referees’ report”. The parties’ mutual obligations under that clause were not expressed to be conditional on this Court adopting the Report in the exercise of the power under s 54A(3) of the FCA Act or the power in r 28.67 of the Rules. If all applicants retracted the boundaries of their claims so as to align with the boundaries depicted in the findings map, the overlapping claims would be resolved in relation to each other by virtue of the applicants compromising their positions by narrowing their claims.
It is significant that the note to the referral orders, as agreed by the parties, expressed that the parties had “agreed to a process for the resolution of their overlapping claims by a referee appointed by the Court”. As reflected in that note, the Protocol Deed was plainly intended by the Aboriginal parties to establish an enforceable process by which (at least) the inter-proceeding disputes created by the overlaps would be resolved.
The existence of the Aboriginal parties’ contractual obligations is a relevant consideration to be afforded considerable weight, but it is not determinative of the State’s application. The Court may adopt the answers provided by the referees to the questions directed to them for the purpose of determining a question arising in the proceedings, irrespective of the Protocol Deed. It would follow from that adoption that any claims inconsistent with those findings would be liable to be struck out or ultimately dismissed on their substantive merits, again irrespective of any contractual obligation of any party to withdraw a claim in whole or in part.
The above observations are to be understood against the claims as they are presently formulated. They apply at least in respect of the referees answers to the referred questions. Whether the word “findings” in the Protocol Deed bears a wider meaning is presently unnecessary to decide.
The Yirrganydji objection
When the Protocol Deed was executed, each of the claim groups asserted that they held present day native title rights and interests in their respective claim areas by a process of descent from ancestors in occupation of the land and waters at and before sovereignty. At that time, no claim group has previously asserted that their native title rights and interests were first acquired by ancestors in any part of the study area after sovereignty or effective sovereignty.
The Yirrganydji applicants now foreshadow amendments to their claim. To understand the bases for their objection to the State’s application, it is necessary to outline the asserted factual and legal foundation for the foreshadowed amendment, so far as that can be done on the limited material provided.
A new foreshadowed claim
The foreshadowed amendments relate to a part of the “Yidinji Patriclans” area defined by the blue boundaries on the findings map. The written submissions of the Yirrganydji applicants describe the foreshadowed claim as one “based on adaption, change and/or succession”. As Counsel for the Yirrganydji applicant frankly acknowledged, the foreshadowed claim is a challenge to the continuity of connection of the Yidinji people in relation to the Yidinji Patriclans area defined on the findings map. In oral submissions the foreshadowed claim was described as one derived from principles explained in the authorities discussed by Mansfield J in Croft on behalf of theBarngarla Native Title Claim Group v State of South Australia [2015] FCA 9; 325 ALR 213 as follows:
711The question of whether it is permissible for a native title claim group to claim land that was not land to which their apical ancestors possessed any rights and interests to under their laws and customs is a question that has arisen in past cases but has not been authoritatively resolved.
712In Dale v Moses [2007] FCAFC 82 (Dale), the Full Court (Moore, North and Mansfield JJ) said at [120]:
… The observations of … [Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta at 443–444 [44]] do not establish a principle of the type apparently relied on by the appellants, namely that where the traditional laws and customs of one society provide for the transmission of rights and interests in land recognised by those laws and customs, then transmission to another society can be effected and the acquisition of the transferred rights in interest [sic] can ultimately be recognised as rights and interests of the transferee society for the purposes of the [NT Act]. The primary judge was probably correct in rejecting this contention. However it is not an issue which it is necessary for us to explore as the legal proposition, if correct, would only be engaged and operate in the appellants favour if certain matters of fact were established. In the present case, the required factual foundation is lacking in several important respects.
713The required factual foundation was lacking because the trial judge failed to find on the evidence that (a) the appellants were a society for the purpose of the NT Act; (b) the traditional laws and customs in issue included a right of transmission; (c) there had in fact been a transmission: Dale at [121]. As such, the comments were obiter. A similar ‘succession’ argument had been rejected by Nicholson J in Daniel at [383].
714The issue again arose in Western Australia v Sebastian (2008) 173 FCR 1; 248 ALR 61; [2008] FCAFC 65 (Sebastian), before a slightly differently comprised Full Court (Branson, North and Mansfield JJ). Its comments on the issue were again ultimately only obiter dicta: at [103].
715In AB (dec’d) (on behalf of the Ngarla People) v Western Australia (No 4) (2012) 300 ALR 193; [2012] FCA 1268, Bennett J at [578] described the effect of the Full Court’s comments in Sebastian thus:
… [the Full Court] inclined to the view that there could be succession between two societies. However, the succession between the two ‘societies’ was in accordance with the common traditional laws and customs of the two clans and the Full Court was ‘informed’ by the closeness of the laws and customs finding, in effect, that there was, relevantly, one society.
716Ultimately, Bennett J concluded in the circumstances of that case at [579] that ‘I do not need to decide whether there are differences between Dale and Sebastian …’
717In my opinion, there is no inconsistency between the views expressed in Dale v Moses and Sebastian. A society for the purposes of native title jurisprudence is merely a ‘body of persons united in and by its observance and acknowledgment of a body of law and customs’: Yorta Yorta at [52] per Gleeson CJ, Gummow and Hayne JJ. If there are two groups that share a common or closely similar body of law and customs, then they are one ‘society’ for the purposes of native title. It is certainly possible for one group within a single society, in respect of land formerly possessed by another group within that society, to have obtained rights and interests in that land which are rights and interests possessed under traditional laws and customs. There is no reason why a society’s traditional laws and customs could not provide for such ‘transmission’ or ‘succession’ between groups in particular circumstances. However, if two groups’ traditional laws and customs vary to an extent such that they cannot be considered one ‘society’, then it is difficult to see how the ‘transmission’ of one group’s country to another group, or the ‘succession’ to one group’s country by another group, could lead to the ‘transferee’ group’s obtaining rights and interests in the relevant land that could be said to be possessed under traditional laws and customs.
…
719It should be briefly noted that the applicant’s contention that ‘succession’ to another group’s country is in accordance with Barngarla traditional law and custom does not contradict the applicant’s contention that Barngarla country is inalienable. The ideas of alienability and ‘succession’ are distinct. The concept of alienability requires an alienor and an alienee. The concept of ‘succession’ requires only a formerly populated country that has now become ‘vacant’, and the subsequent ‘moving in’ of a neighbouring people.
(emphasis added)
In the case before him, it was not necessary for Mansfield J to determine whether the asserted legal principles underlying the claim founded in conjoint succession should or should not be accepted. His Honour’s conclusion is to be understood as assuming that such a claim may be made in law, but rejecting the claim on the basis that the essential factual elements for it were not established on the evidence. His Honour did not conclusively decide whether native title rights and interests may be transmitted from one society to another society (as opposed to estate groups within the same society). See also the more recent discussion in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [647] – [648] (Mortimer J).
In relation to the foreshadowed claim, the Yirrganydji applicants have commissioned a further report from Mr Peter Blackwood. The terms of reference require Mr Blackwood to:
1.Investigate, analyse and advise whether the Cairns Regional Claim Group/Yirrganydji People currently hold any native title rights and interests in the area described by the referees at sovereignty as ‘Yidinji Patriclans’ in Schedule 21 of their report (excluding that area south of Skeleton Creek) and the sea country adjacent to it (‘the Inquiry Area’).
2.If you are of the opinion that the Cairns Regional Claim Group/Yirrganydji People currently hold native title rights and interests in the Inquiry Area, identify:
(a)the native title rights and interests that they hold, including whether they are exclusive or non-exclusive; and
(b)having regard to the findings of the referees, the basis in traditional law and custom for the Cairns Regional Claim Group/Yirrganydji People holding such native title rights and interests.
At the time of publishing these reasons, the outcome of Mr Blackwood’s investigation and analysis (if there is one) is unknown to the Court.
Presumably the foreshadowed claim would allege that some time after sovereignty the land became “vacant” and that there was a subsequent “moving in” by Yirrganydji Patriclans (to adopt the language in Croft), and that there was a succession of native title rights and interests in accordance with the traditional laws and customs of at least the Yidinji people (as they relate to succession to the territory formerly occupied by dwindling or extinct Yidinji patriclans). At the time of the hearing of these applications, Counsel for the Yirrganydji applicants was unable to articulate the factual foundation for it in any other precise way. In particular, it is unclear whether it is intended to be asserted that the Yidinji and Yirrganydji people are to be regarded as estate groups or subgroups within the same traditional society. Either way, it appears that the foreshadowed claim proceeds from a different (indeed inconsistent) factual foundation than that relied upon before the referees as to the identity of the pre-sovereignty traditional occupants. Counsel did not otherwise elaborate on what was meant by the words “adaption” and “change”: it is unclear whether those words import legal notions distinct from the concept of transmission of rights or interests by a process of succession in accordance with traditional law and custom as discussed in Croft.
Were it not for the foreshadowed claim, the Yirrganydji applicants acknowledge that clause 3 of the Protocol Deed would impose upon them an obligation to retract the boundaries of the proposed determination area in each of the Yirrganydji claims because the maintenance of those boundaries would be inconsistent with the referees’ findings. However, it is submitted that upon the making of the foreshadowed amendments, no obligation could arise under the Protocol Deed for the boundaries of their claim areas to be withdrawn. That was said to be because the claim founded in succession is not inconsistent with the referees’ finding that the Yidinji Patriclans were the holders of native title in the relevant area at sovereignty. It was submitted that the question of continuity of the native title rights and interests of the Yidinji people after sovereignty was not referred to the referees and is therefore a contested issue that remains to be judicially determined in the proceedings. Further, it was submitted that the referees were not directed to express any opinion as to which group or groups presently hold native title rights and interests in the study area and so were not legally authorised to express any opinion in relation to that question.
The Court has not been asked to defer consideration and resolution of the State’s interlocutory applications until an application to amend the originating applications in the two Yirrganydji matters can be made and determined.
Basis for the objection
The Yirrganydji notices of objections are in identical terms and may be treated as a single notice. After setting out some of the relevant background, the objection proceeds as follows:
d.The effect of Order 1 of the Orders dated 5 April 2019 limited the scope of the Inquiry and the Report to the Referee giving opinions, making findings and/or drawing conclusions on the matters referred to in Questions 1 to 3 of Annexure 1 to the Orders dated 5 April 2019, in effect to the situation prior to or at 1876.
e.Findings or conclusions of the Report as to facts matters or circumstances that occurred after 1876 for any purpose other than the drawing of inferences as to the situation prior to or at 1876, (the Specified Purpose) are beyond the scope of the authority of the Inquiry and the Court should ensure adoption of those parts of the report only have that effect for the Specified Purpose.
f.S54A(3) (a)FCA and Rule 28.67 FCR provide for the Court to adopt the Report. The State seeks an order that the Court adopt the whole of the Report. The effect of adoption of the whole of the Report by the Court may (without qualification) be to adopt the opinions, findings and conclusions of the Referees contained in the Report as if they were evidence in these proceedings, of the fact matter or circumstance to which the opinion, finding or conclusion relates, and thereby may bind the Yirrganydji People to accept that evidence for a purpose other than the Specified Purpose, in the later stages of these proceedings.
g.If the Court adopts (without qualification), the opinions findings or conclusions that may be invalid for exceeding the scope of authority of the Referees (other than for the Specified Purpose), the Yirrganydji People would suffer injustice and be unfairly precluded from being able to assert evidence contrary to the opinion, finding or conclusion expressed in the Report that may otherwise be invalid for the reasons set out herein, during later stages of these proceedings.
As has been mentioned, the primary argument is that the Report is not a “report” for the purposes of s 54A(3) of the FCA Act except to the extent that it sets out answers to the referred questions at [559] – [563]. Relatedly, it was submitted that the Report is “invalid” to the extent that it purports to contain findings of fact concerning any period of time after sovereignty, because no question appertaining to that time period was referred to the referees. Alternatively, it was submitted that if the whole of the Report was a “report” within the meaning of s 54A(3) of the FCA Act, the Court should, in its discretion, only adopt that part of the document in which the final conclusions are expressed. It was submitted that the Court should not adopt specified sentences contained in the body of the document that are (or are at least perceived to be) prejudicial to the foreshadowed succession claim. In a further alternative, it was submitted that should the Court adopt those specified sentences, it should do so only for the purpose of answering the questions referred to the referees and for no other purposes. The specified sentences are set out at [5] of the notices of objection. They are dealt with collectively at [113] below.
The word “invalid” appears both in the objection notice and in the claim for declaratory relief made on the interlocutory applications filed by the Yirrganydji applicants on 31 July 2020. I consider the use of that word to be inapt in the present context. The Court has before it a document dated 6 March 2020. The first issue to be decided is whether that document (or any part of it) meets the description of “a report of a referee under” s 54(1) of the FCA Act. That involves a question of construction. More specifically, it is necessary to ask whether the “report” comprises only the ultimate answers given by the referees to the three referred questions, but not the intermediate findings or paths of reasoning underpinning their answers.
Proper construction of s 54A of the FCA Act
The referral orders in the present case were expressed to have been made in the exercise of the powers conferred under both s 54A(1) of the FCA Act and r 28.61 of the Rules. The word “report” appears in both provisions. It also appears in the adoption powers conferred under s 54A(3) of the FCA Act and r 28.67 of the Rules.
In construing the provisions, the starting point is the text, the language employed being “the surest guide to legislative intention”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, Hayne, Heydon, Crennan and Kiefel JJ (at [46]). As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (at [78]):
… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …
(footnotes omitted)
Approaching s 54A of the NT Act first, it can be seen that the word “report” is used as a noun, both in s 54A(1) and in s 54A(3). The word may be presumed to bear the same meaning throughout the enactment unless a contrary intention appears: Kline v Official Secretary to the Governor-General (2013) 249 CLR 645, French CJ, Crennan, Kiefel and Bell JJ (at [32]).
In its ordinary meaning, the noun “report” is the document that is to be provided by the referee after conducting an inquiry. It is the written means by which the referee communicates to the Court the outcome of the inquiry to which s 54A(1) refers. It may also be observed that the “report” is the only document required to be given by the referee under s 54A(1), and so is the only document that the Court may “deal with … as it thinks fit” under s 54A(3). In a case where one or more questions arising in a proceeding in the Court are referred to a referee, plainly enough the referee is required to include, in the report, the answers to the referred questions.
If the argument of the Yirrganydji applicants were to be accepted, the word “report” in s 54A(1) must be construed so as to prohibit the referee from including in the report any information other than the bare answers to the referred questions. The reasoning supporting those answers, and any intermediary factual findings or assumptions underpinning the answers would not be required to be provided. In my view, ascribing such a narrow meaning to the word “report” would be to frustrate the objectives of the referral regime as identified in the authorities discussed earlier in these reasons. It would deprive the parties of the information necessary for the referees’ answers to be appreciated and accepted. It would render the cognitive task of the referee opaque (if not arbitrary) and would deny both the Court and the parties access to information as to how the answers were arrived at.
Moreover, whilst the referee is not a judge of the Court, the inquiry conducted by the referee is said to provide an alternate mode of trial. In the general run of cases, a purpose for referring a matter to a referee is to draw upon his or her experience or expertise in respect of the referred subject matter to aid the judicial resolution of a disputed issue (or all disputed issues) in a proceeding. The parties have an interest in having sufficient information to comprehend how the referee has approached the task. In cases where the ultimate answers to the referred questions turn on multiple intermediate disputed questions of fact (as is common), the parties have a special interest in knowing the material upon which those findings were based, so as to be assured that they are founded in logic.
The initial statement of facts provided to the inquiry in June 2019 contained an assertion to the effect that the Kunggandji Gurrabuna applicant had not previously had an opportunity to obtain an expert report to support its position in connection with the study area. The statement of facts referred to (and attached) a draft report of Dr Powell of 1998. That report appears to have been prepared for the Northern Queensland Land Council in relation to the Yarrabah region.
The Kunggandji Gurrabuna applicant subsequently obtained a report from Dr Deane Fergie and Mr Ray Wood. That report was provided to the referees in August 2019. Detailed submissions were made in respect of it and the reasons of the referees disclose at some length why those submissions were not accepted (at [227] – [244], [250] – [255], [257] – [284]).
Ms Addo submitted that she was “not happy” with the expert report submitted to the referees on the Kunggandji Gurrabuna applicant’s behalf. However, Ms Addo did not furnish that submission with any detail and the Court was not taken to the expert report for that or any other purpose. It has not been established that there are material shortcomings in the Report of a kind that might be relevant to the Court’s present task. More particularly, it has not been demonstrated that any perceived shortcomings were the result of any departure from the rules of procedural fairness in the conduct of the inquiry.
In my view, Ms Addo’s submissions rise no higher than to express dissatisfaction with the manner in which the case of the Kunggandji Gurrabuna applicant was presented by its representatives at the inquiry and a desire to now present the factual case differently (or at least with different emphasis). So much is apparent from Ms Addo’s attempts to re-agitate the factual issues in this Court, as discussed below.
Incorrect genealogies
For the most part, the affidavit material relied upon by the Kunggandji Gurrabuna applicant relates to the factual issues forming the subject of the referees’ opinions. Ms Addo’s oral submissions also focussed principally on that issue. The submissions were directed at persuading this Court to refuse to adopt the opinion of the referees and to form a different opinion of its own on the basis of the affidavits.
I have considered the factual submissions and evidence for the limited purpose of ascertaining whether it could be said that the referees’ opinions find no support in the evidence before them and for the purpose of assessing whether the referees’ conclusions are illogical or unreasonable in the sense that no reasonable decision-maker could have arrived at them.
I do not consider the submissions to provide a proper basis for refusing to adopt the Report for three reasons.
First, it has not been established that the material contained in the affidavits before me is the same as that presented by the Kunggandji Gurrabuna applicant to the referees at the inquiry. To the extent that an alternative case may be presented, that is not a proper basis for refusing to adopt the Report, even if the alternate case has prima facie force.
Second, Ms Addo did not address the circumstance that the referees have relied upon a broader range of evidence, much of which was conflicting or otherwise open to differing interpretations. It is not enough to show that a different conclusion might have been reached had the referees evaluated the evidence differently.
Third, on its face, the Report details the submissions that were made by Counsel on behalf of the Kunggandji Gurrabuna applicant. There is no suggestion that the referees misapprehended the submissions detailed in that section of the Report, nor that they omitted any part of them, nor that they failed to meaningfully engage with them. Notwithstanding the absence of such a submission, I have considered it appropriate to independently satisfy myself that the reasoning of the referees is cogent, not only in relation to the Kunggandji Gurrabuna applicant but in relation to all of the applicants.
In so doing, I have had particular regard to the submission that the only Aboriginal person born in the study area before the date of effective sovereignty was Kari, the father of George Christian. The date and place of birth of those in occupation in the study area was a topic that was the subject of detailed submissions of all of the parties at the inquiry.
The referees were not bound to adopt the reasoning set out in expert reports that formed the basis of prior consent determinations, nor were they bound to accept the opinions expressed by any one of the reports presented to them at the inquiry.
It may be observed that in Mundraby, the determination application was made jointly by a Yidinji subgroup and the Kunggandji people on the premise that they formed a part of a traditional society. The determinations did not descend into detail as to which group within that society held native title rights and interests in respect of any particular part of the determination area.
In the present cases, the referees necessarily approached their task with a narrower focus, defining boundaries on the findings map by reference to the patriclans of particular claim groups and not by reference to any wider traditional society of which those patriclans may form a part. The narrow focus is explained by the litigious context in which the referral was made and by the manner in which the questions were framed by the Aboriginal parties themselves. It reflects the entrenched positions of the applicant groups in multiple proceedings in which each group denies the pre-sovereignty rights and interests of others, at least in the areas where their claims overlap. Unlike the prior consent determinations, the Kunggandji Gurrabuna applicant did not apply for a determination of native title in the study area jointly with any other group on the basis of the existence of a larger traditional society of which they claim to form a part.
Whilst to some extent the Kunggandji Gurrabuna applicant relied at the inquiry upon affiliations with the Yidinji people arising by marriage, it was not denied that rights and interests in the land and waters in the study area were derived under traditional laws and customs by patrilineal descent.
The referees stated that the evidence before them “seems to support a Kunggandji identity for both Kari and George Christian” (at [256]). The more contentious issue was whether Kari and George Christian were traditionally connected to the study area.
As the referees said, the Kunggandji Gurrabuna applicant made submissions addressing the location of the Kunggandji, the Yidinji and the Yirrganydji in the study area (at [279]) and acknowledging that there was “strong evidence” that the Cairns area was occupied by Yidinji. The referees understood the argument of the Kunggandji Gurrabuna applicant to mean that “if only two groups were identified, the Kunggandji must have been included in one of them, and it must have been Yidinji”.
The asserted bases for that connection included that suggested in the report of Dr Fergie and Mr Wood of August 2019, in which Dr Fergie asserted that a pattern emerged from the genealogical records of “intergenerational marriage between family members and their affines who are identified as ‘Idindji’ and ‘Kongandji’”. Dr Fergie asserted:
[227]In my view it is plausible that these repeated ‘anomalies’ reflect the playing out of a longer term pattern in which members of these families had married back and forth over a number of generations.
[228]It is my opinion that it is quite plausible that long-term bilateral cross cousin marriage would establish tenurial rights in the country of each family participating in that arrangement.
(footnote omitted)
The referees said that it was difficult to treat Dr Fergie’s theory as more than a “mere possibility” (at [263]). They observed that Dr Fergie’s language throughout the report was “of qualification and doubt” (at [268]) and that some of the factual foundations for her theory were speculative (at [266]). It was open to the referees to evaluate the opinion in that way having regard to the material portions of Dr Fergie’s opinion extracted in the Report and the other evidence before the referees as summarised in the Report as a whole. It can be seen that the referees otherwise placed considerable weight on historical maps and other materials which placed the traditional country of the Kunggandji on the east side of the Trinity Inlet and that of the Yidinji on the west (at [283]). The submissions of Ms Addo do not address the body of evidence that was contrary to the case of the Kunggandji Gurrabuna applicant, such as that to which I have just referred.
It is not to the point that different factual findings more favourable to the Kunggandji Gurrabuna applicant might have been open on the same material.
Alleged misappropriation of cultural knowledge
Ms Addo submitted that the information relied upon by the other claim groups before the referees was material that has been proven to be “Kunggandji tribal intellectual properties”. The complaint is articulated in the document titled “Interlocutory application” filed on 15 December 2020 and other documents, culminating in the following plea:
We therefore humbly seek [an] order from the Australian Federal [Court] for the referees to remove our intellectual tribal properties from their report and that the other Aboriginal parties are also to remove our intellectual tribal properties from their reports as they do not have permission to use our traditional languages.
The limited material before me does not support the claim that there has been misappropriation or misuse of material that has been “proven” to be Kunggandji traditional information. The circumstance that the respective applicants relied upon traditional information bearing similarities to that upon which the Kunggandji Gurrabuna applicant relied is insufficient, of itself, to make good the assertion of misappropriation. In my view, the complaint goes to the same complex subject matter referred to the referees and amounts to no more than an assertion that the referees are incorrect in their conclusions as to which ancestors of which claim group held native title rights and interests in the study area at sovereignty.
The submissions as to misappropriation were based on materials previously relied upon by the Kunggandji Gurrabuna applicant to secure the consent of the State in respect of the two determinations in Murgha and Mundraby. In making those determinations, it was not the role of the Court to find any part of the claims to have been “proven”. Rather, the Court satisfied itself that it was appropriate to give effect to the agreement that the parties had reached in each of the proceedings. The proposed determinations were not contested and they did not legally affect any future consideration of the existence of native title rights and interests in the study area at sovereignty.
Finally on this topic, the use of language, stories or other forms of traditional knowledge was subject matter upon which all of the participating parties were able to make submissions before the referees at the inquiry. The reasoning of the referees could not be fairly understood if the referees’ consideration of those submissions were to be excised from the Report. The referees’ summary of the submissions advanced by the Kunggandji Gurrabuna applicant do not include any reference to there being an allegation of misappropriation of language or other cultural knowledge. As I have said, it has not been submitted that the referees’ summary of the submissions is inaccurate or incomplete.
I do not accept the submission that the referees have themselves misused “tribal intellectual properties”. The referees were entitled (indeed obliged) to deal with the evidence of language and other cultural matters put before them, to draw conclusions related to language groups in particular, and to disclose its reasoning on those subjects in answering the referred questions.
Conclusion on the KG applicant’s objections
As McDougall J said in Chocolate Factory Apartments, an adoption hearing is not an occasion for the subject matter of the inquiry to be retried, nor is the hearing in the nature of an appeal from the findings of the referees. The opportunity to be heard does not include the opportunity to be heard twice. In my view, the larger part of the submissions made on behalf of the Kunggandji Gurrabuna applicant offends those principles. I am not otherwise satisfied that there was any procedural unfairness attending the inquiry of a kind that would warrant the Court refusing to adopt the Report. Nor has the Kunggandji Gurrabuna applicant identified any arguable basis for concluding that the Protocol Deed should not apply in accordance with its terms.
Resolution of the adoption issue
I am satisfied it is appropriate to adopt the whole of the Report in each proceeding for the purpose of resolving each of the referred questions as they relate to the study area.
In my view, it would be desirable to make orders for the preparation of a detailed description of the boundaries depicted in the findings map to facilitate the making of any consequential orders to give effect to these reasons.
Subject to further submissions, it may be necessary to make ancillary or consequential orders so as to ensure that the Court observes the requirements of s 67 of the NT Act to the extent that it has any continuing operation.
THE UNDERTAKING ISSUE
The State submits that upon adoption of the Report, the referees’ answers to the referred questions and the reasoning underpinning those answers should appropriately form a part of the public record. To “ensure clarity in that regard”, the Sate seeks an order that the Report is “taken to have been read in open court pursuant to rule 20.03 of the Federal Court Rules”.
Rule 20.03(1) provides that if a document is read or referred to in open court in a way that discloses its contents, any express or implied undertaking not to use the document except in relation to a particular proceeding no longer applies. I will deal with the issue of the implied undertaking in relation to the Report as a separate question. Before doing so, I consider it appropriate to clarify the legal basis upon which the public may have access to it.
At the commencement of the hearing of the present applications, the Report was marked for identification “MFI-A”. The document now forms a part of the records of the Registry of the Court within the meaning of r 2.31 of the Rules and so is a document that is within the District Registrar’s custody and control.
The parties have referred to the Report in their written and oral submissions. The Court was asked to read the whole of the Report for the purpose of determining the present applications and it has done so. However, it has not read the Report in open court in a way that has disclosed the whole of its contents. I do not consider it appropriate to order that it be “taken” to have been so read. It is preferable to take the more direct approach of releasing the State from the undertaking to which the rule refers and to make provision for the Report to be made publicly available.
The report of a referee provided to the Court is not listed among the document types to which a non-party to a proceeding may have access as of right: see r 2.32(2). Rule 2.32(4) provides that a person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect. In my view, the Court’s power to deal with the Report as it thinks fit includes a power to grant non-parties leave to inspect the Report for the purposes of r 2.32(4). Rule 2.32(5) relevantly provides that a non-party may be given a copy of a document which the non-party is entitled to inspect, upon the payment of a prescribed fee.
Insofar as public access to the Report is concerned, after prompting on the question, no party advanced a reason as to why any part of the Report should remain confidential or otherwise suppressed from publication. I do not consider the assertions of the Kunggandji Gurrabuna applicant in relation to intellectual property subsisting in the Report to form a proper basis for withholding the Report from public access. Facilitation of that access will advance the objectives of open justice in proceedings in which the referral procedures have been invoked for the resolution of important questions arising in each of these proceedings.
In each matter the State seeks a further order permitting it to use certain expert reports relied upon by the referees and subsequently filed in the various proceedings. The State seeks to use the documents for the purpose of assessing whether the requirements of s 223(1)(a) and (b) of the NT Act are satisfied in relation to one or more of the claims.
The State proceeds from the assumption that it is restricted in its use of the documents because they are documents to which an implied undertaking applies of the kind explained in Home Office v Harman [1983] 1 AC 280. To the extent that the implied undertaking arises in connection with any one of the documents, I accept that it may operate to prevent the State from using certain documents filed in one proceeding for purposes unconnected with that proceeding.
The State’s application to be released from the undertaking was not the subject of any discrete objection by any other party. To the extent that the submissions advanced in opposition to the adoption of the Report are also relied upon to oppose an order releasing the State from the undertaking, the submissions have been rejected. I am satisfied that releasing the State from the undertaking would advance the objects of the NT Act, including by aiding in the resolution of the remaining disputes by conciliation or negotiation. As mentioned, the preferable approach is to make an express order releasing the State from the undertaking, rather than any order referrable to r 20.03(1).
ORDERS
In each proceeding, there will be orders substantially allowing the State’s interlocutory applications, and otherwise giving effect to these reasons.
A case management hearing will be conducted immediately following the delivery of judgment and the publication of these reasons. In the meantime I consider it appropriate to make an order prohibiting each applicant from amending its claim except with the leave of the Court. That will ensure that any future consequential orders are expressed with the precision necessary to resolve the overlapping claims.
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 1 April 2021
SCHEDULE 1
SCHEDULE 2
SCHEDULE OF PARTIES A
QUD 14 of 2019 Respondents
Fourth Respondent:
CHARLES KORNELL ADDO
Fifth Respondent:
SAM ADDO
Sixth Respondent:
SARAH ADDO
Seventh Respondent:
DJABUGAY NATIVE TITLE ABORIGINAL CORPORATION RNTB
Eighth Respondent:
BERNICE CAROLE DWYER
Ninth Respondent:
SEITH HARDY FOURMILE
Tenth Respondent:
HENRIETTA LILIAN MARRIE
Eleventh Respondent:
DESLEY UNDERWOOD
Twelfth Respondent:
LEE YEATMAN
Thirteenth Respondent:
ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
Fourteenth Respondent:
FAR NORTH QUEENSLAND PORTS CORPORATION LIMITED
SCHEDULE OF PARTIES B
QUD 337 of 2015 Respondents
Fourth Respondent:
DOUGLAS SHIRE COUNCIL
Fifth Respondent:
DOREEN BALL
Sixth Respondent:
ROSS BOYLE
Seventh Respondent:
ALFRED DIAMOND
Eighth Respondent:
SEITH HARDY FOURMILE
Ninth Respondent:
VERONA KAY FULERTON
Tenth Respondent:
VINCENT MARK HILTON MUNDRABY
Eleventh Respondent:
PATRICK DANIEL MICHAEL O'SHANE
Twelfth Respondent:
NEVILLE RYAN
Thirteenth Respondent:
FAR NORTH QUEENSLAND PORTS CORPORATION LIMITED (TRADING AS PORTS NORTH) ACN 131 836 014
Fourteenth Respondent:
TELSTRA CORPORATION LIMITED
SCHEDULE OF PARTIES C
QUD 692 of 2016 Respondents
Fourth Respondent:
DOUGLAS SHIRE COUNCIL
Fifth Respondent:
MAREEBA SHIRE COUNCIL
Sixth Respondent:
CHARLES KORNELL ADDO
Seventh Respondent:
SARAH ADDO
Eighth Respondent:
JABALBINA YALANJI ABORIGINAL CORPORATION
Ninth Respondent:
TELSTRA CORPORATION LIMITED ABN 33 051 775 556
Tenth Respondent:
KEITH REGINALD ARMSTRONG
Eleventh Respondent:
MARGARET ROSE ARMSTRONG
Twelfth Respondent:
RON REDDICLIFFE
Thirteenth Respondent:
SKYRAIL PTY LTD
Fourteenth Respondent:
IAN WALLACE
Fifteenth Respondent
ROBERT WALLACE
Sixteenth Respondent
YVONNE WALLACE
Seventeenth Respondent
DUANE CASH
Eighteenth Respondent
COLDAV PTY LTD
Nineteenth Respondent
CORRINE MARIE NOEL LA BAYSSE , THE EXECUTOR AND SOLE BENEFICIARY OF THE ESTATE OF MARC EDWARD ALIN LA BAYSSE
Twentieth Respondent
HARTLEY’S CREEK CROCODILE FARMING CO PTY LTD
Twenty First Respondent
DEAN MAHONEY
SCHEDULE OF PARTIES D
QUD 21 of 2019 Respondents
Fourth Respondent:
DOUGLAS SHIRE COUNCIL
Fifth Respondent:
MAREEBA SHIRE COUNCIL
Sixth Respondent:
HENRIETTA MARRIE
Seventh Respondent:
SEITH HARDY FOURMILE
Eighth Respondent:
DEWAYNE CLINTON MUNDRABY
Ninth Respondent:
MANDINGALBAY YIDINJI ABORIGINAL CORPORATION
Tenth Respondent:
WILLIAM BRIM
Eleventh Respondent:
NORTH QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION
Twelfth Respondent:
CAPE YORK LAND COUNCIL ABORIGINAL CORPORATION
Thirteenth Respondent:
JEANETTE SINGLETON
Fourteenth Respondent:
KERRY SHEPPARD
Fifteenth Respondent:
GEORGE SKEENE
Sixteenth Respondent:
ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
Seventeenth Respondent:
FAR NORTH QUEENSLAND PORTS CORPORATION LIMITED ACN 131 836 014
Eighteenth Respondent:
TELSTRA CORPORATION LIMITED ABN 33 051 775 556
Nineteenth Respondent:
AFL CAIRNS LIMITED ACN 010 616 798
Twentieth Respondent:
CAIRNS AIRPORT PTY LTD ACN 132 228 221
Twenty First Respondent:
SKYRAIL PTY LTD
Twenty Second Respondent:
DEAN MAHONEY
Twenty Third Respondent:
CAIRNS DISTRICT JUNIOR RUGBY LEAGUE LIMITED
Twenty Fourth Respondent:
HARTLEY’S CREEK CROCODILE FARMING COMPANY PTY LTD T/AS HARTLEY’S CREEK CROCODILE ADVENTURES
Twenty Fifth Respondent:
THE CAIRNS CULTURAL CO-ORDINATING ASSOCIATION INC
Twenty Sixth Respondent:
DUANE CASH
Twenty Seventh Respondent:
BRUCE MOGENSEN
Twenty Eighth Respondent:
STEVE ROSE
SCHEDULE OF PARTIES E
QUD 23 of 2019 Respondents
Fourth Respondent:
CHARLES KORNELL ADDO
Fifth Respondent:
SAM ADDO
Sixth Respondent:
SARAH ADDO
Seventh Respondent:
DJABUGAY NATIVE TITLE ABORIGINAL CORPORATION RNTB
Eighth Respondent:
BERNICE CAROLE DWYER
Ninth Respondent:
ALLISON HALLIDAY
Tenth Respondent:
VINCENT MARK HILTON MUNDRABY
Eleventh Respondent:
NORTH QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION
Twelfth Respondent:
KERRI SHEPPARD
Thirteenth Respondent:
JEANETTE SINGLETON
Fourteenth Respondent:
GEORGE SKEENE
Fifteenth Respondent:
DESLEY UNDERWOOD
Sixteenth Respondent:
DONALD JAMES HUSSEY
Seventeenth Respondent:
AFL CAIRNS LTD ACN 010 616 798
Eighteenth Respondent:
CAIRNS CULTURAL COORDINATING ASSOCIATION INCORPORATED
Nineteenth Respondent:
ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
Twentieth Respondent:
FAR NORTH QUEENSLAND PORTS CORPORATION LIMITED
Twenty First Respondent:
TELSTRA CORPORATION LIMITED
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