Bonner on behalf of the Jagera/Yagera People v State of Queensland

[2019] FCA 917

FEDERAL COURT OF AUSTRALIA

Bonner on behalf of the Jagera/Yagera People v State of Queensland

[2019] FCA 917

File number:

QUD 689 of 2018

Judge:

REEVES J

Date of judgment:

16 May 2019

Catchwords:

NATIVE TITLE – application for leave to discontinue a native title determination application – where the native title determination application failed the registration process under Part 7 of the Native Title Act 1993 (Cth) – where the native title determination application may be subject to dismissal under s 84D or s 84C of the Native Title Act 1993 (Cth) – leave granted

Legislation:

Native Title Act 1993 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:

Levinge v Queensland (2012) 208 FCR 98; [2012] FCA 1321

Date of hearing:

16 May 2019

Registry:

Queensland

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

7

Counsel for the Applicant:

Mr D Yarrow

Solicitor for the Applicant:

P&E Law

Counsel for the Respondent:

Mr M Taylor

Solicitor for the Respondent:

Crown Law

ORDERS

QUD 689 of 2018

BETWEEN:

JAMES BONNER and ELIZABETH BOND ON BEHALF OF THE JAGERA/YAGERA PEOPLE

Applicant

AND:

STATE OF QUEENSLAND

Respondent

JUDGE:	REEVES J
DATE OF ORDER:	16 MAY 2019

THE COURT ORDERS THAT:

1.Pursuant to r 26.12(4) of the Federal Court Rules 2011 (Cth), the applicant has leave to file a notice of discontinuance in the proceeding within seven days.

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

1. The applicant, authorised on behalf of the Jagera/Yagera people (Jagera/Yagera Applicant), filed the Jagera/Yagera native title determination application with the Court on 21 September 2018. Soon thereafter, in accordance with s 63 of the Native Title Act 1993 (Cth) (the NTA), the application was submitted to the registration process under Part 7 of the NTA. It failed that process, evidenced by a decision of a delegate of the Native Title Registrar made on 17 December 2018. That failure occurred primarily because the delegate was not satisfied that the decision-making process used to authorise the making of the Jagera/Yagera application was a traditional decision-making process within the meaning of s 251B of the NTA.

2. The Jagera/Yagera Applicant then applied to the National Native Title Tribunal (the Tribunal) on 25 January 2019 to have the delegate’s decision reconsidered.  On 12 April 2019, the Tribunal decided to affirm the delegate’s decision.

3. With that history in mind, the Jagera/Yagera Applicant acknowledged that the application was potentially subject to dismissal under s 84D, or possibly s 84C, of the NTA. It has, therefore, sought leave to discontinue the application.  In support of that application, it relied on two affidavits of Mr Matthew Patterson, one filed on 26 April 2019 and the other filed on 10 May 2019. The State of Queensland, the only respondent to the substantive application, relied on an affidavit of Ms Kate Marchesi filed on 15 May 2019.

4. Leave to discontinue a proceeding in this Court is required under r 26.12(4) of the Federal Court Rules 2011 (Cth). I discussed the general principles applicable to an application for such leave and, in particular, an application to discontinue a native title determination application, in Levinge v Queensland (2012) 208 FCR 98; [2012] FCA 1321 (Levinge).  Among other things, I expressed the view in Levinge that the authorised applicant should seek the views of the native title claim group before applying to discontinue a native title determination application, it being a representative proceeding.  Based on the affidavit materials before me, I am satisfied that that has occurred in this matter.

5. The only other issue that may possibly arise from Levinge is whether there is any intention on the part of the Jagera/Yagera people to file a further native title determination application over the same area.  That issue arose in Levinge because of the native title claim group’s past history of filing and discontinuing native title determination applications and its stated intention to file a further application in the future once it had garnered the funds necessary to do so.  There is no similar past history with the Jagera/Yagera people and there is no similar stated intention to file another native title determination application in the future.  I am, therefore, satisfied that that issue does not arise in this matter.

6. Otherwise, having regard to the principles outlined in Levinge and to the materials before me, I am satisfied that it is appropriate to grant leave to the Jagera/Yagera Applicant to discontinue the Jagera/Yagera native title determination application.

7. Accordingly, the orders will be:

   1.Pursuant to r 26.12(4) of the Federal Court Rules 2011 (Cth), the applicant has leave to file a notice of discontinuance in the proceeding within seven days.

   2.There be no order as to costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:       

Dated:       14 June 2019