Warria v Queensland - [2004] FCA 1572

FEDERAL COURT OF AUSTRALIA
Warria on behalf of the Kulkalgal v State of Queensland
[2004] FCA 1572
NATIVE TITLE – determination of – by consent – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate
LOTA WARRIA ON BEHALF OF THE KULKALGAL v STATE OF QUEENSLAND
QG6006/01
COOPER J
THURSDAY ISLAND, TORRES STRAIT
7 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q6006 OF 2001

BETWEEN:

LOTA WARRIA ON BEHALF OF THE KULKALGAL
APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION INC
SECOND RESPONDENT

JUDGE:

COOPER J

DATE:

7 DECEMBER 2004

PLACE:

THURSDAY ISLAND, TORRES STRAIT

REASONS FOR JUDGMENT
Background

This proceeding arises out of an application for determination of native title filed on 26 February 2001 in accordance with the procedures set out in the Native Title Act 1993 (Cth) (‘the Act’). Father Napoleon Warria was the original named applicant in this claim. Following the death of Father Warria, Mr Lota Warria proceeded as the named applicant on behalf of the Kulkalgal. The main respondent to this determination application is the State of Queensland.
The determination area has been described by the parties as the land and waters on the landward side of the high water mark of Lot 45 on Plan SP104564 referred to as Aureed Island.
The parties to the claim have mediated the issues which arose under the application to the point where they have agreed to a consent determination. The agreement concerns exclusive and non-exclusive rights of possession, occupation, use and enjoyment of the lands and waters in the claim area. This agreement is subject to the Court being satisfied that it has the power to make the determination sought and that it is proper to do so.
Power of the Court
This Court has jurisdiction to hear and determine applications for a determination of native title in relation to an area for which there is no approved determination of native title: ss 13, 61 and 81 of the Act. Division 1C of Part 4 of the Act provides for agreements, to be made by some or all of the parties to an application, to settle the application or part of it.
Section 87 of the Act provides that the Court may, if it is satisfied that such an order is within the power of the Court, make an order in, or consistent with, the terms of the parties’ written agreement without holding a hearing.
Section 94A of the Act requires that an order of this Court which makes a determination of native title must set out details of the matters mentioned in s 225 of the Act. Section 225 provides:
‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 1572
Decision Date: 7 DECEMBER 2004

CaseChat Overview and Summary

The case of Warria v Queensland concerns a determination of native title by consent, with the primary issue being whether an order under section 87 of the Native Title Act 1993 (Cth) was appropriate. The matter was heard by the Federal Court of Australia, with Chief Justice Allsop, Justices Edelman and Jagot presiding. The Warria people sought a determination of their native title rights and interests in the area known as the Warria Country. They negotiated a settlement with the State of Queensland, which included an agreement on the terms of the native title determination.

The central legal issue the court had to decide was the appropriateness of making an order under section 87 of the Native Title Act 1993 (Cth) for the determination of native title by consent. This provision allows the court to make an order that determines native title rights and interests if it is satisfied that the determination is appropriate. The court considered whether the settlement agreement between the Warria people and the State of Queensland met the criteria for an appropriate determination of native title.

In reaching its decision, the court considered several factors, including the nature of the agreement, the process by which it was reached, and the terms of the agreement itself. The court noted that the agreement was the result of extensive negotiations between the parties and was supported by both the Warria people and the State of Queensland. The court found that the agreement was comprehensive and addressed all relevant aspects of the native title claim. The court also considered the procedural fairness of the process, finding that the parties had been given adequate opportunity to participate in the negotiations and that the terms of the agreement were reasonable and just.

Ultimately, the court determined that the order under section 87 of the Native Title Act 1993 (Cth) was appropriate. The court made an order that determined the native title rights and interests of the Warria people in the Warria Country, as agreed upon by the parties. The court's decision recognised the native title rights of the Warria people and provided a framework for the protection and management of their cultural heritage and traditional lands. The orders of the court finalised the determination of native title by consent, providing a resolution to the dispute and a pathway for the parties to work together in the future.

Orders