Weribone on behalf of the Mandandanji People v State of Queensland
[2018] FCA 247
•7 March 2018
FEDERAL COURT OF AUSTRALIA
Weribone on behalf of the Mandandanji People v State of Queensland
[2018] FCA 247
File number: QUD 366 of 2008 Judge: RARES J Date of judgment: 7 March 2018 Catchwords: NATIVE TITLE – consent determination under s 87 of the Native Title Act 1993 (Cth) that native title does not exist – considerations relevant to court finding such determination to be appropriate under s 87(1A) Legislation: Native Title Act 1993 (Cth) Part 15, ss 13, 66, 87, 87A, 94A, 223, 225
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Cases cited: CG v Western Australia (2016) 240 FCR 466
Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109
Oil Basins Ltd v Watson [2014] FCAFC 154
The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
Date of hearing: Heard on the papers Date of last submissions: 21 February 2018 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Vance Hughston SC with Tina Jowett and Andrew Preston Solicitor for the Applicant: Queensland South Native Title Services Ltd Counsel for the Respondent: Stephen Lloyd SC and Erin Longbottom Solicitor for the Respondent: Crown Law
Table of Corrections 8 March 2018 In the Appearances on the cover page in the field Solicitor for the Applicant has been amended from “Crown Law” to “Queensland South Native Title Services Ltd” 8 March 2018 In the Appearances on the cover page in the field Solicitor for the Respondent has been amended from “Queensland South Native Title Services Ltd” to “Crown Law” 8 March 2018 In paragraphs 14 and 16 the word “Hutchinson” has been replaced with the word “Hutchison” 3 April 2018 In the Schedule of Parties the names of the applicants “David Combarngo, Violet Jean Costa, Phyllis Beryl Hopkins, Miranda Mailman, Sylvia Joyce McCarthy, Lorraine Florence Tomlinson and Sarah Trindall” have been replaced with “Vincent Anderson, Wayne Weribone, Tracy Landers, Theresa Manns, Rodney Landers, Neville Munn, Jude Saldanha, Max McDonald and Alex Costa” ORDERS
QUD 366 of 2008 BETWEEN: LESLIE WERIBONE AND OTHERS ON BEHALF OF THE MANDANDANJI PEOPLE
Applicant
AND: STATE OF QUEENSLAND AND OTHERS (ACCORDING TO THE SCHEDULE)
Respondent
JUDGE:
RARES J
DATE OF ORDER:
7 MARCH 2018
BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth).
BY CONSENT THE COURT ORDERS THAT:1.There be a determination of native title in the terms set out below (the determination).
2.Each party to the proceedings is to bear its own costs.
BY CONSENT THE COURT DETERMINES THAT:
3.The Determination Area is the land and waters described in the Schedule and depicted in the map attached to the Schedule. To the extent of any inconsistency between the written description and the map, the written description prevails.
4. Native title does not exist in the Determination Area.
DEFINITIONS AND INTERPRETATION5.In this determination “land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth).
Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).
Schedule
A. Description of Determination Area
The determination area comprises all of the land and waters within the external boundary described below, and depicted on the map.
External Boundary
Commencing at Longitude 148.326183° East, Latitude 26.304873° South; and extending generally northerly and generally north-easterly to a point on the watershed between the Dawson River and Balonne River Sub Basin Drainage Areas and the ridgeline of the Great Dividing Range at Longitude 148.413946° East, Latitude 26.013949° South passing through the following coordinate points:
Longitude East Latitude South 148.326229 26.293860 148.325414 26.277912 148.325477 26.263201 148.325539 26.248898 148.327783 26.239934 148.329592 26.229330 148.331859 26.214645 148.333680 26.201181 148.335508 26.185673 148.337761 26.174257 148.337840 26.155050 148.338337 26.141570 148.338386 26.129721 148.340634 26.119121 148.341748 26.117318 148.346400 26.109790 148.353939 26.097619 148.362800 26.084645 148.369891 26.073694 148.384049 26.056694 148.391131 26.046967 148.397336 26.035596 148.404419 26.025052
Then generally easterly along that watershed and ridgeline to Longitude 149.657530° East; then generally southerly passing east of Jackson to a point about 6.5 km south-westerly of Glenmorgan and west of Erringibba Creek at Longitude 149.639128° East, Latitude 27.297062° South passing through the following coordinate points:
Longitude East
Latitude South 149.657594 26.370469 149.657482 26.379161 149.656653 26.387352 149.656540 26.396044 149.656506 26.405306 149.656470 26.414568 149.656073 26.435442 149.655597 26.455746 149.654281 26.465147 149.653762 26.475619 149.653164 26.485520 149.652645 26.495992 149.652280 26.507604 149.651276 26.519285 149.650192 26.530397 149.649109 26.541508 149.648026 26.552619 149.643353 26.580319 149.642521 26.588510 149.641843 26.597841 149.640855 26.604891 149.639788 26.611371 149.639519 26.618922 149.638607 26.626543 149.637696 26.634163 149.637582 26.642855 149.636904 26.652186 149.636382 26.662657 149.635938 26.673698 149.635806 26.687020 149.635751 26.700913 149.635601 26.718866 149.636345 26.733829 149.636854 26.747082 149.637928 26.759695 149.638282 26.771807 149.638480 26.782779 149.638678 26.793752 149.638876 26.804724 149.639230 26.816836 149.639584 26.828948 149.639374 26.841699
Longitude East Latitude South 149.639009 26.853310 149.639327 26.874684 149.639134 26.882804 149.639236 26.897837 149.639729 26.915720 149.640223 26.933603 149.640716 26.951486 149.640680 26.960747 149.639748 26.972998 149.639303 26.984039 149.638292 26.995720 149.637925 27.007331 149.637401 27.017801 149.636643 27.026561 149.636530 27.035253 149.636493 27.044514 149.636535 27.054345 149.636498 27.063606 149.637184 27.073367 149.637148 27.082628 149.638797 27.113694 149.638995 27.124665 149.639917 27.136137 149.640761 27.147039 149.640881 27.157440 149.641568 27.167202 149.641610 27.177033 149.642140 27.185655 149.642436 27.192566 149.641930 27.198406 149.642382 27.206457 149.642189 27.214578 149.642154 27.223839 149.641142 27.235519 149.640931 27.248270 149.639997 27.260520 149.640195 27.271491 149.640063 27.284812
Then generally south-westerly to a point on the centreline of Teelba Creek at Latitude 27.736673° South passing through the following coordinate points:
Longitude East Latitude South 149.638603 27.307533 149.637276 27.316932 149.636438 27.325122 149.634622 27.335730 149.633861 27.344489 149.632376 27.352749 149.628996 27.371047 149.623030 27.389620 149.618061 27.401145 149.617418 27.402944 149.614971 27.426353 149.588916 27.502943 149.588805 27.503203 149.583101 27.514225 149.571456 27.534559 149.565594 27.544440 149.560299 27.553681 149.554278 27.562422 149.548256 27.571162 149.542077 27.578761 149.537191 27.586223 149.531657 27.593753 149.520743 27.609953 149.516423 27.616775 149.512103 27.623597 149.507938 27.631559 149.498313 27.647620 149.487467 27.664388 149.475892 27.680653 149.469780 27.688819 149.461154 27.697830 149.454391 27.706064 149.442357 27.721054
Then generally south-westerly along the centreline of that creek and generally westerly along the centreline of the Moonie River to its intersection with the centreline of Thomby Creek; then generally northerly and generally north-westerly along the centreline of that creek and the centreline of an unnamed creek to Longitude 148.945490° East, Latitude 27.823770° South; then generally north-westerly passing through Longitude 148.933516° East, Latitude 27.776011° South to the south-eastern corner of the northern severance Lot 18 on EG80; then north-westerly and generally westerly along the southern boundaries of that severance, southern and western boundaries of the northern severance Lot 6 on SP215322 to Latitude 27.642512° South, a point east of Warro Bridge and north of Bindle; then westerly to the centreline of the Balonne River at Latitude 27.641188° South; then generally southerly and generally south westerly and westerly along the centreline of that river and its eastern branch to the intersection with the centerline of the Maranoa River, a point in Lake Kajarabie (Beardmore Reservoir) at Longitude 148.618360°, East, Latitude 27.838250° South; then generally northerly, generally westerly and generally northwesterly along the centreline of the Maranoa River to Longitude 148.498211° East; then northwesterly to the eastern external boundary of the former Native Title Determination Application QUD6027/2001 Gunggari People #2 (as at 15 December 2011) at Longitude 148.497438° East, Latitude 27.791069° South; then generally north-westerly and generally northerly along that former external boundary, being the western bank of the Maranoa River to Latitude 27.555703° South, a point on the external boundary of Native Title Determination QUD548/2012 Gunggari People #3 (as determined by the Federal Court 5 December 2012); then generally north easterly and generally northerly along that external boundary back to the commencement point passing through the following coordinate points:
Longitude East Latitude South 148.480010 27.512289 148.542458 27.474899 148.588059 27.428165 148.588107 27.415843 148.58816 27.402698 148.590899 27.388742 148.590956 27.374366 148.591015 27.359578 148.587497 27.345188 148.58041 27.329141 148.571092 27.312674 148.561778 27.296206 148.555154 27.278105 148.55208 27.265769 148.548113 27.25384 148.544172 27.23575 148.53888 27.220939 148.533576 27.209004 148.526945 27.194598 148.520313 27.181014
Longitude East
Latitude South 148.514136 27.165788 148.514189 27.154696 148.514251 27.141551 148.514318 27.127584 148.513491 27.114025 148.511324 27.100869 148.506039 27.086879 148.500287 27.077404 148.494101 27.065874 148.485695 27.05269 148.480403 27.041162 148.473338 27.027984 148.467632 27.010703 148.461324 26.998343 148.460473 26.986481 148.453393 26.978231 148.44854 26.968369 148.444568 26.960969 148.443276 26.948694 148.439339 26.931076 148.438042 26.920436 148.430518 26.914222 148.421223 26.907171 148.410586 26.903374 148.401283 26.899183 148.393308 26.895823 148.387551 26.892897 148.384464 26.887958 148.384051 26.879779 148.384077 26.872831 148.385884 26.864269 148.388135 26.855303 148.388166 26.847129 148.38821 26.835277 148.38825 26.824651 148.388298 26.811573 148.383926 26.795584 148.382653 26.780039 148.3827 26.767778 148.379654 26.753031
Longitude East Latitude South 148.37661 26.737875 148.374896 26.722733 148.373191 26.705139 148.373243 26.691653 148.37331 26.674488 148.373352 26.663454 148.373411 26.648333 148.373469 26.633212 148.373523 26.619317 148.375779 26.607899 148.376706 26.596875 148.376822 26.566633 148.376876 26.552738 148.376921 26.540886 148.376069 26.532294 148.36816 26.519125 148.360271 26.501052 148.355063 26.476879 148.348077 26.455546 148.340676 26.428486 148.339003 26.405988 148.332484 26.380573 148.332556 26.36341 148.330866 26.345408 148.329173 26.328224 148.326165 26.30898
Data Reference and Source
•External boundary based in part on spatial data sourced from the Commonwealth of Australia, NNTT March 2016.
•Ridgeline of the Great Dividing Range based on Drainage Basin Sub-Area Queensland Data as at (19/04/2011) sourced from Department of Environment and Resource Management (Qld) September 2011.
•Cadastral data sourced from Department of Natural Resources and Mines, (Qld) October 2015.
•Where available watercourse boundaries were derived from Cadastral data or 1:250K Topographic Vector Data is © Commonwealth of Australia (Geoscience Australia) 2008.
Reference Datum
Geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.
Use of Coordinates
Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
B Map of Determination Area
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RARES J:
This application on behalf of the Mandandanji people for a determination of native title under s 225 of the Native Title Act 1993 (Cth) commenced on 6 November 2008. The applicant currently comprises twelve biological descendants of four apical ancestors: Combarngo Bill, Nellie Edwards, Mary Weribone and Weribone Jack Senior (namely, Vincent Anderson, Alexandra Combarngo, Alex Costa, Leigh Himstedt, Rodney Landers, Tracy Landers, Theresa Manns, Max McDonald, Neville Munn, Jude Saldanha, Leslie James Weribone and Wayne Weribone). The respondents are the State of Queensland, Balonne Shire Council, Maranoa Regional Council, Western Downs Regional Council, several energy supply and mining companies, and pastoralists.
On 21 February 2018, the applicant, the State and the other respondents signed an agreement, pursuant to s 87(1) of the Native Title Act that provided for the Court, to make a determination that no native title rights and interests exist over the claim area (the negative determination).
The Court’s jurisdiction and the statutory scheme
Relevantly, s 87 will apply if, at any stage of the proceedings after the end of the notification period prescribed in s 66 (which expired on 30 September 2009), the parties reach agreement on the terms of an order for the Court to make in relation to the proceedings, the agreement is in writing signed by the parties and filed with the Court and, the Court is satisfied, in accordance with s 87(1)(c), that an order in, or consistent with, those terms, would be within its power. Moreover, s 87(2) allows the Court to make such an order without a hearing.
The form of the order proposed in the agreement satisfies the requirement of s 94A of the Act that the determination set out details of the matters mentioned in s 225. Relevantly, s 225 provides that a determination of native title is a determination of whether or not native title exists in relation to a particular area of land and waters and, only if it does exist, sets out further details in relation to the nature and extent of the determination. Since the proposed determination is a negative one, it suffices that the determination identifies, as the proposed one does, the land and waters in the claim area and reflects that native title does not exist in relation to that area.
In CG v Western Australia (2016) 240 FCR 466, 483 [65]-[66], North, Mansfield, Jagot and Mortimer JJ (with whom Reeves J agreed at 487 [85]) held that the Court had power under the Act to make a negative determination of native title in appropriate circumstances if, and after careful consideration, it is satisfied on the balance of probabilities that no native title rights or interests exist in relation to the particular area. Their Honours dismissed an appeal challenging the primary judge’s negative determination arrived at after a final hearing in which the applicant had failed to establish its claim to a positive determination.
Factual background
This is the fourth proceeding in which persons who identify themselves as Mandandanji have sought a determination of native title in respect of some or all of the claim area. The first was filed on 12 September 1997 and was subsequently withdrawn, and the second, filed on 28 October 1997 ultimately, was dismissed. The third filed on 6 June 2001 also was dismissed. Each of those three claims covered almost all of the claim area in this proceeding. Jesse Land, one of the solicitors acting for the applicant, affirmed in his affidavit of 21 February 2018 that he had not been able to locate any application for the first of those 1997 claims. He said that the second of the 1997 claims identified the apical ancestors of the claim group as being Nellie Edwards, William Combarngo, Weribone Jack and Mary Jaylor. It is not clear whether Mary Jaylor was also known as Mary Weribone or was a different person. The only two apical ancestors for the third (2001) claim, were Weribone Jack (Snr) and William Combarngo.
There were also other claims by the Bidjara, Western Wakka Wakka and Barunggam peoples made in 1997, 1999 and 1999 that overlapped relatively small parts of the claim area in the west and the east. The Bidjara people’s claim was withdrawn in 1997. The Western Wakka Wakka people’s claim was struck out in 2007, while the Barunggam people’s claim was dismissed on 5 August 2008. There have also been nine claims in respect of areas that surround the claim area, some of which have resulted in determinations of native title.
I made case management orders on 18 December 2015 and 27 June 2016, to prepare the proceeding for a contested final hearing to commence in Roma on 5 June 2017. The parties, particularly the applicant and the State, prepared detailed evidence for that hearing. This evidence included:
•statements of evidence by 18 lay witnesses;
•expert anthropological reports filed by each of the applicant (Dr John Morton) and the State (Dr Sandra Pannell) that led to them making a joint report dated 9 November 2016;
•detailed tenure research by the State; and
•an agreed statement of facts dated 5 April 2017 filed pursuant to s 87(8).
The joint report disclosed that the experts disagreed about whether the apical ancestors and other claim group descriptors on which the applicant relied established that the claim group was descended from the persons who held native title rights and interests in relation to the land and waters in the claimed area, and whether the claim group acknowledged and observed the traditional laws and customs of those earlier inhabitants.
The agreed statement of facts identified that native title had been extinguished in all but about 5% or 6% of the claim area, or 485 of 9,350 parcels located wholly or partially within it. Those 485 parcels had a total land area of about 115,000 hectares.
In her affidavit affirmed on 24 May 2017 the applicant’s solicitor, Wati Qalotaki said that she received advice from senior counsel for the applicant on 3 May 2017. He had been briefed to review and advise upon the totality of the evidence that the applicant had filed, including Dr Morton’s reports.
On 9 May 2017, Ms Qalotaki provided advice to members of the applicant about the evidence and options for disposition of the proceeding. The applicant instructed her at that meeting that the applicant did not wish to proceed to the contested final hearing and sought, instead, the present outcome.
On 20 May 2017, the native title claim group met with Ms Qalotaki at the Explorers Inn at Roma. The meeting confirmed that the applicant should not proceed with its application and, instead, should seek the present consent determination that native title does not exist over the claim area. Ms Qalotaki explained that the applicant had instructed her to proceed on this course both before and after the claim group meeting.
Peter Hutchison is the acting director, claim resolution of Aboriginal and Torres Strait Islander Land Services in the Department of Natural Resources, Mines and Energy, the lead agency of the State that deals with native title matters. He said in his affidavit of 21 February 2018 that the State had briefed junior counsel, to assess, having regard to the requirements of s 223(1) of the Act, the applicants’ witnesses’ statements of evidence and the expert evidence as these were filed. By late April 2017, the State had also briefed senior counsel with the material and he, junior counsel, Dr Pannell, Mr Hutchison and others in his team, assessed and reviewed the whole of the evidence that had been filed for the purposes of the trial.
Mr Hutchison said that the State received a letter dated 11 May 2017 from Ms Qalotaki. That revealed that the applicant’s senior counsel had advised that, taking account of the whole of the evidence, including that recently obtained, the claim had only limited prospects of success and, when considered with the very limited portions of the claim area where native title could possibly be recognised, those prospects were insufficient to justify proceeding to what would doubtless be a lengthy and expensive contested hearing.
Following the State’s receipt of this letter and the 20 May 2017 meeting of the claim group, Mr Hutchison said that the State agreed to vacating the orders for the trial and to negotiate towards an agreement pursuant to s 87 of the Act under which the parties would seek a negative determination.
Is the proposed determination appropriate?
Experienced senior and junior counsel for each of the applicant and the State made detailed written submissions in support of the proposed consent negative determination. I have considered those submissions and am satisfied that they have addressed a proper basis on which the Court may act under s 87 of the Native Title Act.
The State has a particularly significant role to play in proceedings under ss 87 and 87A (which applies to consent determinations over part of a claim area) because of its position as an institution of government that has responsibility for protecting the public interest: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at 115 [28]-[30] per Emmett J. The discretion created by s 87(2) to make an order in, or consistent with, the terms of that agreed by the parties, must be exercised judicially, on the basis that it must appear to the Court that it is appropriate to do so, as s 87(1A) provides.
There can be no standard or expected terms or conditions in the negotiation of agreements under ss 87 and 87A of the Act. Nor does s 87(1A) impose any precondition beyond that the agreement, under which the parties seek that the Court make orders for a determination of native title, be one that the Court considers “appropriate”. The Court must make such an evaluation of the s 87 agreement having regard to the subject-matter, scope and purpose of the Act: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ.
A relevant consideration in assessing the appropriateness of making a consent determination under s 87 is the overarching purpose of the civil practice and procedure provisions as provided in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Relevantly, s 37N(1) imposes a duty on the parties to conduct the proceeding, including negotiations for settlement, such as the present, that has culminated in an agreement under s 87 of the Act, in a way that is consistent with that overarching purpose: Oil Basins Ltd v Watson [2014] FCAFC 154 at [145] per Siopis, McKerracher and Barker JJ. I am satisfied that the parties have acted in accordance with s 37N in arriving at the s 87 agreement.
Consideration
The applicant and the State have given substantive consideration, with the benefit of advice from experienced senior counsel, solicitors and expert anthropologists, before taking the decision to seek the negative determination sought. That was done very soon before the trial was to commence and it was a decision that both the applicant and the native title claim group endorsed with the benefit of the advice of the applicants’ senior counsel and Ms Qalotaki. Thus, in May 2017, when the applicant and the claim group decided not to pursue a contested determination of native title they did so in the knowledge that, first, only a small portion of the claim area, consisting of disparate parcels, could be found to be land and waters in relation to which native title rights and interests could still exist, and, secondly, there was a significant difference in the experts’ evidence as to whether the applicant could prove that the claim group had any native title rights or interests at all.
The agreement for a negative determination appears to be appropriate on the material before me. I have had regard to the matters set out above and in particular to the significant differences between the expert anthropologists, the relatively small portions of scattered land and waters (albeit, in total over 115,000 hectares) in respect of which native title could be found to exist, the complexity, personal stress on many lay witnesses, the expense of a contested trial and the opinions of the applicant’s senior counsel as to the applicant’s prospects of success on the available evidence. I have also had regard to the fact that the State has agreed to the making of the negative determination.
As both the applicant’s and the State’s written submissions noted, the parties’ s 87 agreement is not underpinned by, or associated with, an indigenous land use agreement in favour of the claim group. Had there been such an outcome, it may have provided the claim group with a potential benefit, apart from the finality it will obtain by the resolution of this proceeding. However desirable the provision of such an indigenous land use agreement may seem in theory, the end result of the negotiations between the parties, who have had competent legal and other expert advice, is the s 87 agreement as it is. I am satisfied, that, having regard to the substantive disparity of the experts’ views in the joint report, there is nothing in the circumstances to suggest that it was necessary for there to be an indigenous land use agreement to underpin the parties’ agreement or that the terms of the s 87 agreement are other than an appropriate resolution.
There can be little doubt that the claim group will regard the negative determination as, to say the least, a real disappointment. One of the consequences of the interactions between Australia’s indigenous peoples and the early European settlers, together with their governments (Colonial, Federal and State), was the significant interruption of both the indigenous people’s presence on their traditional land and waters and their relationships within their original social structures. As each of those separations lengthened, the capacity of some indigenous societies to acknowledge, retain and observe their traditional laws and customs was sometimes weakened and, on occasion (as appears to have happened here), disrupted to the point where it has disappeared.
The sad reality appears to be that there is no longer any claim group that can prove that it has native title rights and interests in the originally very large claim area, or even the smaller scattered portions of over 115,000 hectares that could have been made the subject of a positive determination that native title rights and interests still existed. As I have explained above, not only is this the fourth application where a claim group identifying as Mandandanji has sought a determination of native title in relation to the claim area by reference to at least two consistent common apical ancestors, but there have been three partially overlapping and another nine adjacent claims or determinations during the last 20 years.
In that context, I am satisfied that it is unlikely that any other claim group exists that could make a case for a positive determination in respect of the limited portions in the claim area that have not experienced acts of extinguishment of native title. Accordingly, I am satisfied that there is no approved determination of native title or other extant application for such a determination in relation to all or any part of the claim area.
Moreover, I am satisfied that the negative determination that the parties have agreed is appropriate. That is because it will provide substantial certainty as to the land title status to all persons, including the State, with legal or equitable interests in the land and waters in the claim area. That certainty, as is the case in respect of all consent and final determinations of native title is, of course, subject to the possibility of a future application for a variation or revocation of that determination made under s 13(1)(b), if events subsequently occur that cause the determination no longer to be correct or the interests of justice require its variation or revocation (s 13(5)).
As a result of the orders that the parties have agreed ought to be made, all persons with interests in the land and waters in the claim area will now be substantially free of the risk of any further application for a determination of native title in relation to the claim area under the Native TitleAct. There is a real public benefit in finality of litigation and in the Court giving the public and the parties certainty in respect of rights to, and interests in, real property.
Conclusion
For these reasons, I am satisfied that it is appropriate to make orders giving effect to the negative determination of native title that the parties have agreed under s 87.
I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 7 March 2018
SCHEDULE OF PARTIES
QUD 366 OF 2008
BETWEEN:
ALEXANDRA COMBARNGO, LEIGH HIMSTEDT, VINCENT ANDERSON, WAYNE WERIBONE, TRACY LANDERS, THERESA MANNS, RODNEY LANDERS, NEVILLE MUNN, JUDE SALDANHA, MAX McDONALD, ALEX COSTA AND LESLIE JAMES WERIBONE ON BEHALF OF THE MANDANDANJI PEOPLE
Applicant
AND:
STATE OF QUEENSLAND First Respondent MARANOA REGIONAL COUNCIL Second Respondent BALONNE SHIRE COUNCIL Third Respondents WESTERN DOWNS REGIONAL COUNCIL ERGON ENERGY CORPORATION LIMITED AA COMPANY PTY LTD Fourth Respondents IRIS ALDRIDGE MELISSA JANE ELLIOTT SHANE RAY ELLIOTT CHARLES NORMAN NASON SARAH HAMILTON NASON JOHN HENRY RUSSELL RONALD ERIC TARRY COLIN THOMAS VARIDEL CAROLYN JANE REDGEN MARK DOUGLAS REDGEN ANULKA NL Fifth Respondents ANVIL AUSTRALIAN PETROLEUM PTY LTD BRIDGE OIL EXPLORATION PTY LIMITED BRIDGEFIELD PTY LIMITED BRONCO ENERGY PTY LIMITED DELHI PETROLEUM PTY LIMITED DOCE PTY LTD FAIRVIEW PIPELINE PTY LTD GEOLOGICAL SERVICES PTY LTD MAUREEN JEAN HOPE ROBERT BRUCE HOPE MOONIE PIPELINE COMPANY PTY LTD AGL GAS STORAGE PTY LTD AGL UPSTREAM GAS (MOS) PTY LTD PAPL (UPSTREAM) PTY LIMITED SANTOS (BOL) PTY LTD SANTOS AUSTRALIAN HYDROCARBONS PTY LTD SANTOS LIMITED SANTOS QNT PTY LTD SANTOS RESOURCES PTY SANTOS TOGA PTY LTD VAMGAS PTY LTD ANGARI PTY LIMITED Sixth Respondents AUSTRALIA PACIFIC LNG CSG MARKETING PTY LIMITED AUSTRALIA PACIFIC LNG PTY LIMITED OIL INVESTMENTS PTY LIMITED ORIGIN ENERGY ELECTRICITY LIMITED JEMENA QUEENSLAND GAS PIPELINE (1) PTY LTD Seventh Respondents JEMENA QUEENSLAND GAS PIPELINE (2) PTY LTD JEMENA DARLING DOWNS PIPELINE (1) PTY LTD JEMENA DARLING DOWNS PIPELINE (3) PTY LTD