Budby on behalf of the Barada Barna People v State of Queensland (No 2)

The case of Budby on behalf of the Barada Barna People v State of Queensland (No 2) involved the applicants, the Barada Barna People, seeking to establish their native title rights over a specified area in Queensland. This case, which has been through multiple iterations since 1997, was brought before the court with a renewed application supported by anthropological evidence. The State of Queensland and the Wiri respondents contested the application, arguing that the Barada Barna People did not have a legitimate claim over the disputed area, particularly regarding the inclusion of the town of Nebo. The applicants argued that they had a valid claim supported by anthropological research, and that the dispute with the Wiri respondents did not justify striking out their application.

The legal issues before the court were whether the application was "clearly untenable" and whether it should be summarily dismissed. The applicants argued that the application was properly formulated and authorised, and that there were reasonable prospects of successfully prosecuting the claim. They submitted that the anthropological evidence supported their connection to the area, and that disputes between anthropologists and competing claims should not be grounds for dismissal. The respondents, on the other hand, contended that the claim should be struck out because it was untenable and lacked proper authorisation.

In considering the matter, the court focused on whether the application was clearly untenable and if there were reasonable prospects of success. The court found that the anthropological evidence provided by Dr Sackett raised significant doubts about the inclusion of certain areas, such as Nebo, and the identity of key apical ancestors. The court concluded that the claim was clearly untenable due to these uncertainties and the lack of clear evidence supporting the applicants' assertions. Additionally, the court noted that the applicants' willingness to engage with the Queensland South Native Title Services did not negate the untenable nature of the claim. The court determined that the applicants should not be deprived of their opportunity to prosecute their claim, but also that the untenable nature of the claim warranted its dismissal.

The court ordered that the native title application be dismissed, with the opportunity for the applicants to re-lodge a properly formulated and authorised claim if they could provide sufficient evidence to support their assertions. This decision highlighted the importance of clear and robust evidence in native title claims, and the need for applicants to demonstrate a legitimate and tenable claim to the court.