Judgment Delivery - Transcript of Video

Wik Peoples v State of Queensland [2004] FCA 1306

COOPER J
13 OCTOBER 2004
AURUKUN


[Justice Cooper at bench]

Justice Cooper: These proceedings seek a determination of native title under the Native Title Act 1993. The claim is made by the applicants for themselves and on behalf of the Wik and the Wik Way Peoples. The original claim was filed on 24th of March 1994. In June 2000, it was ordered that the claim be determined in two parts: Part A and Part B. The lands in Part A were confined to lands that had always been unallocated Crown lands or lands that had only ever been subject to forms of [inaudible] granted for the benefit of Aboriginal peoples. On the 3rd of October 2000, Justice Drummond determined by consent that native title existed in the land and waters within part A of the claim. Part B of the claim comprises the balance of the lands and waters of the claim area. The lands and waters in Part B contained lands held under pastoral lease and mine titles.

To the credit of all parties to the claim they have mediated the issues which arose in Part B to the point where they have [inaudible] consent determinations. There agreement is subject to the Court being satisfied that it has the power to make the determinations sought and that it is proper to do so.

One agreement concerns exclusive rights of possession, occupation, use and enjoyment of the lands and waters in certain parts of the claim area. The second concerns non-exclusive rights to other parts of the claim area.

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.

Section 87 of the Native Title Act provides the Court may if it is satisfied that such an order is within the powers of the Court, make an order in or consistent with the terms of the parties’ written agreement without holding a hearing.

Section 94(a) of the Native Title Act requires that the Court must make certain determinations in accordance with section 225.

In considering whether it is appropriate to make the orders that the parties seek, I have had the benefit of an affidavit of a report of Dr Peter Sutton filed on the 15th of September 2004. I have also read an earlier report dated the 29th of June 1997, prepared by Dr Sutton which was before Justice Drummond when His Honour made consent determinations in respect of Part A of the claim area.

Dr Sutton is an Australian Research Council Professorial Fellow of the School of Social Sciences, University of Adelaide and a [inaudible] of anthropology at the South Australia Museum. He is also Honorary Research Fellow of the Institute of Archaeology, University College London. Dr Sutton had carried out studies of the Wik and Wik Way Peoples’ native title claim and worked with them, and their predecessors, since 1976.  He is a specialist in the area of anthropological and linguistic research relating to Australian Aboriginal people and Aboriginal society and he is eminently qualified to express the professional expert opinions which he does in his affidavit.

This is a case where there is a rich body of documented material which has been brought into existence over very many years. It establishes the existence of organised Aboriginal occupation and possession of the determination area extending back beyond the imposition of British sovereignty. It also establishes the continuity of an identifiable society of Aboriginal peoples having a connection with the land and waters of the determination area in accordance with traditional laws which they acknowledge and traditional customs which they observe.

Additionally, the content of these records in terms of recorded Aboriginal names and language, enables a linguistic list to be made between the present claimants, their predecessors, and the society which existed in the determination area at the time of sovereignty and the relationship of claim groups with particular parts of the determination area. There is also a long history of fieldwork and academic study in and of the determination area and its peoples which reveals a consistency and continuity in the research findings. This body of material enables the Court to make findings as to the state of affairs which existed in the determination area at the time of sovereignty with greater confidence and to draw the inferences of connection and continuity between the present claimants and the state of affairs which existed at that earlier time.

The historical records of European contact with the claim area commence in 1606 with Willem Jansz and the crew of the Tasman sailing down the West coast of Cape York Peninsula for about 350 kilometres and record the presence of and contact with Aboriginal peoples within the claim area. The record includes sightings and observations of Carstensz in 1633, Mathew Flinders in 1802, the Jardine brothers in 1864, Pennefather in 1180 and numerous others leading up to the gold rushes in the mid-1870s.

In 1897 Archibald Meston, a Special Commissioner for Aborigines, visited the Embley River area and published an account of his visit and his contact with the various Aboriginal people he encountered in the area.  The Weipa Mission was founded in 1898.  The Aurukun Mission was founded in 1904.  In the same year, the Mitchell River Mission began and later moved to Kowanyama in 1915. The Edward River Mission was commenced in 1938.  The records kept by these missions, especially those kept by William and Geraldine MacKenzie at Aurukun from the 1920s to the 1960s, have enabled anthropologists to identify traditional clan estates within the claim area, to construct genealogies, and to demonstrate continuity of members of the claimant group to particular clan estates back at least to the early 1800s.

In his report Dr Sutton also sets out the substantial anthropological work which commenced in this area in or about 1927 and continues to today. I accept the evidence and opinions contained in Dr Sutton’s affidavit and in his two reports. Accordingly I make the following formal findings

(a) I am satisfied that native title exists in relation to the lands and waters identified as Part B of the applicants’ claim and being the areas identified as the Exclusive Areas and the Non-Exclusive Areas in the two draft determinations agreed by the parties;

(b) the members of the claimant group called the Wik and Wik Way Peoples are members of a society of peoples descended from the Aboriginal peoples who as a society at the time of sovereignty occupied the lands and waters identified as the Exclusive Areas and Non-Exclusive Areas in accordance with traditional laws and customs acknowledged and observed by them;

(c) the laws and customs acknowledged and observed by the society at sovereignty are continued to be acknowledged and observed by the members of the claimant group and have been acknowledged and observed by their predecessors from the time of sovereignty to the present time;

(d) the members of the claimant group and their predecessors through their continued acknowledgement and observance of the traditional laws and customs which existed at the time of sovereignty, have maintained since that time a connection to the Exclusive Areas and the Non-Exclusive Areas;

(e) the native title rights and interests in the Exclusive Areas and the Non-Exclusive Areas are held by the peoples who are or are entitled to be or become members of the claimant group called the Wik and Wik Way Peoples;

(f) the nature and extent of the native title rights and interests in relation to the Exclusive Areas are as set out in paragraphs 3, 4 and 5 of the agreed draft determination in respect of the Exclusive Areas; and

(g) the nature and extent of the native title rights and interests in relation to the Non-Exclusive Areas are as set out in paragraphs 3, 4, 5 and 6 of the agreed draft determination in respect of the Non-Exclusive Areas.

I am also satisfied on the materials that there are other interests in and in relation to the Exclusive Areas and the Non-Exclusive Areas.  Those interests and their relationship with the native title interests are set out in paragraphs 6, 7, 8 and 9 of the agreed draft determination in respect of the Exclusive Areas and paragraphs 7, 8 and 9 of the draft determination in respect of the Non-Exclusive Areas.

The proposed Orders, which are consistent with the terms agreed by the parties, recognise that the Wik and Wik Way Peoples as the common law holders of the native title are entitled to possess, occupy, use and enjoy the land and waters of the Exclusive Areas and to enjoy the native title rights and interests in the Non-Exclusive Areas, in accordance with their traditional laws and customs.  The proposed Orders also recognise the other interests in the lands and waters in the determination area and the relationship of those interests with the native title interests.  The proposed Orders contain the elements required by section 94A and section 225 of the Native Title Act.

I am satisfied that it is within my power and the power of the Court to make the Orders sought and that those Orders can appropriately be made to give effect to the parties’ agreement without a full hearing of the applicants’ claim.  I therefore make the Orders and determinations attached as Schedules A and B to these reasons which I will shortly publish.

Before I publish my reasons and adjourn this hearing, I wish to say something about the current list of native title matters in Queensland. There are 196 current native title matters of which 102 were filed between 5 and 11 years ago. Each of these matters has a management plan which has been imposed by and which is supervised by the Court and the cases are being managed with an attempt to bring them as quickly as is possible to a final conclusion. At the same time the National Native Title Tribunal has been working to mediate many of these claims, to achieve an outcome which avoids a contested trial in court. It is obvious that if a significant number of these matters proceeded to trial, it would be many many years before they can be resolved and the costs to the parties would be enormous.

Ten years ago, few people would have seen that the Wik litigation would end today in a consent determination. But through good will, the parties have achieved a mutually acceptable agreement which accommodates their legitimate interests. They now have certainty and conclusion in their affairs. The challenge now is in respect to those remaining cases. It is to find some accommodation quickly, or to bring the matters on for trial. Nobody should underestimate the magnitude of the work ahead. The Court and the National Native Title Tribunal will do all that they can to assist the parties to achieve an early mediated outcome. That said, the applications have been made and they cannot simply sit inactive in the Court or simply be allowed to drift for the years to come. They have been filed in the Court, and like any other litigation in the Court they must be progressed to a final resolution so that the parties can with certainty know what their respective rights and interests are in and in relation to the lands and waters within Queensland which are currently the subject of applications made under the Native Title Act.

I now publish my reasons in relation to the application by the Wik and Wik Way Peoples and the Court will now adjourn.

Court officer: All stand … [Fades out]