Case: Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789 ; (2009) 258 ALR 306
Outcome: cited
although it is not necessary for the Court to consider the body of material that would be available to it in the course of a contested hearing, the Court ought to have regard to sufficient material which is capable of demonstrating that the agreement and the proposed orders are "rooted in reality" (" Native Title A Constitutional Shift? ", University of Melbourne Law School, JD Lecture Series, Chief Justice French, 24 March 2009): Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789; (2009) 258 ALR 306. In that sense, the Court ought to be satisfied that the proposed orders are prima facie appropriate in order to satisfy the test under s 87A(4) of the Act. In this case, the parties to the proposed determination are represented by lawyers experienced in the conduct of native title proceedings and the analysis of issues arising in such proceedings. During the course of the processes leading to the proposed consent determination, the State of Queensland has been provided with extensive material between May 1996 and August 2009. It is not necessary to set out the content of that material in these reasons. Some of that material has been considered by other respondents with an interest in the proposed determination area. I am entirely satisfied that the parties to the Part A agreement have been represented by lawyers experienced in these issues and that the parties have come to a fully informed agreement. In addition, the State of Queensland has had a long engagement with the Aboriginal people of the Determination Area. In this application the applicants have been assisted by Dr John Taylor. Dr Taylor has been retained as an anthropological consultant in relation to the Kowanyama native title claim since 1997. More importantly, Dr Taylor has carried out studies of the Kowanyama native title claim group and worked with members of the group and their predecessors since 1971. During the course of his studies of the Kowanyama native title claim group, Dr Taylor has carried out research into the anthropological, historical, linguistic, genealogical and cultural materials that relate to members of the group and their predecessors in the Kowanyama region. Dr Taylor has mapped Aboriginal landscapes and ownership patterns which has involved extensive site mapping and the study of the principles of land ownership in the Kowanyama region. The nature and extent of Dr Taylor's research work in relation to the Kowanyama region including the land and waters the subject of the primary application is the subject of a document described as "Overview of Connection Materials in support of the Kowanyama Part A Native Title Determination". That report was filed in the Court on 28 September 2009. Dr Taylor in his affidavit filed on 28 September 2009 expresses this opinion at paragraph 12: I am of the opinion that the research conducted in relation to the Kowanyama native title claim group's determination application demonstrates that: (a) the members of the Kowanyama native title claim group are descended from the traditional society in occupation of the land and waters identified as the determination area at the time of sovereignty; (b) the society in occupation of the determination area at the time of sovereignty observed traditional laws and customs which have continued to be acknowledge and observed by the members of the Kowanyama native title claim group and their predecessors; (c) through the continued acknowledgement and observation of the traditional laws and customs, the members of the Kowanyama native title claim group and their predecessors have maintained a connection to the determination area; (d) the activities undertaken by the members of the Kowanyama native title claim group on the determination area are referable to the rights and interests identified in the proposed consent determination of native title, as regulated by their traditional laws and customs.