Combined Dulabed and Malanbarra/Yidinji Peoples v; State of Queensland

[2002] FCA 1370

FEDERAL COURT OF AUSTRALIA

Combined Dulabed & Malanbarra/Yidinji Peoples v
State of Queensland [2002] FCA 1370

COMBINED DULABED AND MALANBARRA/YIDINJI PEOPLES v STATE OF QUEENSLAND & OTHERS
Q 6012 OF 2001

DRUMMOND J
8 NOVEMBER 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 6012 OF 2001

BETWEEN:	COMBINED DULABED AND MALANBARRA/YIDINJI PEOPLES APPLICANT
AND:	STATE OF QUEENSLAND & OTHERS RESPONDENTS

JUDGE:	DRUMMOND J
DATE OF ORDER:	8 NOVEMBER 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The notice of motion filed 18 October 2002 be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 6012 OF 2001

BETWEEN:	COMBINED DULABED AND MALANBARRA/YIDINJI PEOPLES APPLICANT
AND:	STATE OF QUEENSLAND & OTHERS RESPONDENTS

JUDGE:	DRUMMOND J
DATE:	8 NOVEMBER 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I have before me a notice of motion by Mr Michael Morgan for a range of orders, including orders that he be joined in these proceedings as a party on behalf of the Goldsborough Valley Traditional Owner Group; that an interlocutory injunction be imposed on the Malanbarra Group, ie, one part of the claimant group, stopping them from carrying out further activities and programs in the claim area; that the further hearing of the combined claim be adjourned until such time as all of what Mr Morgan described as the “contentious issues” identified in the notice of motion are resolved; that certain persons, who have up until now been acknowledged as members of the claim group, provide evidence which supports their claim to be recognised as such; and, by par 6 of the notice of motion, that Mr Denny Morgan, Mr Michael Morgan (the applicant on the motion), Mrs Veronica Royee and Mr James Tabuai replace Ms Mavis Royee and her son, Mr Len Royee, as applicants.

2. The respondents to the notice of motion are all the present applicants, apart from Mr George Davis, who died recently.

3. The claim is a very old one.  It is a combined claim, the first element of which, the Malanbarra/Yidinji people claim, was lodged with the National Native Title Tribunal (“the Tribunal”) as long ago as October 1994.  Another element of the combined claim, known as the George Davis (Dulabed) claim, was lodged with the Tribunal a little while after that, but still a long while ago, in February 1995.  Then in June 1996, the final element of the combined claim, known as the Malanbarra Clan claim, was lodged with the Tribunal.  There were various overlaps between these claims.  In January 1997, an agreement was reached between the claimant groups to the effect that the Malanbarra/Yidinji claim, the first in time filed, would be reduced so as not to overlap with the George Davis (Dulabed) claim and the Malanbarra Clan claim was to be withdrawn.  The agreement further provided that the interests of the traditional owners of the Goldsborough Valley, other than the Dulabed Clan, would be represented by the Malanbarra/Yidinji claim, which would continue under the name Malanbarra/Yidinji.  Later in 2001, the Dulabed claim and the Malanbarra/Yidinji claim were combined to form the current combined Dulabed and Malanbarra/Yidinji application.

4. In the meantime, the North Queensland Land Council Aboriginal Corporation (“NQLC”) commissioned a connection report from an anthropologist in respect of the traditional owners of the Goldsborough Valley area.  This report was completed in October 1999 and a copy was then supplied to the State of Queensland.  When the combined claim came before me on 23 March 2001, after hearing from all the parties, I directed that mediation by the Tribunal cease because of their indication that they were close to arriving at a consent determination.  When the matter was last before me on 16 August 2002, I was told that progress towards a consent determination had continued.  A consent determination was likely but an adjournment was sought, so that the parties could consider the impact on the claim of the then recently delivered High Court judgment, Western Australia v Ward [2002] HCA 28.

5. As I have mentioned, one of the applicants, George Davis, has unfortunately died since the matter was last before me.  I have a letter from a solicitor for the NQLC describing the consequences of that event on Mr Davis’ family, who are involved in the prosecution of this claim.  All the parties accept that an indefinite delay should now occur to the further progress of this case towards what I take to be, subject to the points raised by Mr Morgan, a consent determination, to enable Mr Davis’ family to participate in what has been described as “sorry time”.

6. The claim group is defined in the combined application as made up of descendants, so far as the Malanbarra/Yidinji claimants are concerned, of six named persons, including Tommy Langdon.  It is undisputed that Mr Morgan is a member of the claim group by reason of his being a descendant of that particular gentleman.  Mr Dore, solicitor for the applicants on the record refers in his affidavit to Mr Morgan’s involvement in the prosecution of this combined claim by reason of his being a member of the working group set up by the NQLC to, in effect, oversee and have input into the prosecution of the claim.  It is not in dispute that Mr Morgan is a member of that working group and has attended working group meetings.

7. The concern that has provoked Mr Morgan to bring this application is his non-acceptance of the anthropological evidence that supports the contention raised long ago in the original claim, and reflected in the combined claim, that the people referred to in par 4 of his notice of motion are entitled to be members of the claim group:  Mr Morgan does not accept that they have any sufficient connection to the relevant portion of the claim area.  There is no evidence before me to support Mr Morgan’s assertion that this particular subgroup of people have in truth no connection with the relevant part of the claim area.  As I have said, the anthropological material is to the contrary effect.

8. What Mr Morgan wants to achieve by this notice of motion is an indefinite adjournment of the prosecution of the claim, and a direction by the Court that the NQLC fund him in his endeavours to make good his contention that these people in truth have no connection to the relevant part of the claim.

9. At this very late stage, Mr Morgan and those supporting him wish to stop finalisation of what still looks very like a consent determination, a determination from which they will benefit as acknowledged members of the claim:  they seek to displace, from both the applicants on the record and the claim group, persons who have until now been universally acknowledged to be members of that group.

10. The Native Title Act 1993 (Cth) contains provisions regulating the circumstances in which relief of the kind claimed, particularly by par 6 of the notice of motion, can be obtained. It is no simple matter to replace an applicant who has got on the record in a native title claim. Mere assertions that certain members of the applicants no longer properly represent the claim group fall far short of what can justify the Court replacing an applicant. Section 66B the Native Title Act simply has not been complied with by Mr Morgan for a number of reasons, not the least of which is the failure on Mr Morgan’s part to put any evidence before the Court showing that, in terms of s 66B(1)(b), the people he proposes to be the new applicants on the record are authorised by the claim group to make the claim application and to deal with matters arising in relation to it.

11. There is, moreover, no satisfactory explanation, in my view, for Mr Morgan’s delay in bringing the notice of motion against the background of his participation, until recently, in the combined claim.  He says in par 27 of his affidavit that the NQLC has not considered his concerns to be very important and has not done anything.  In consequence, he contacted the Tribunal and asked them to contact the NQLC.  He annexes a letter written by a Tribunal member on 24 June 2002 to the NQLC recording Mr Morgan’s concerns, which appear to have been first raised only in 2001, about the entitlement of the people referred to in par 4 of the notice of motion to be recognised as members of the claim group and goes on in his affidavit to say:  “It is my opinion that the Land Council is not in the least bit interested in protecting the native title rights of the proper traditional owners in the Goldsborough Valley”.

12. But, the wide ranging relief he seeks which will involve, if granted, reconstitution of the applicants on the record and an indefinite and long delay to the further prosecution of this claim and an obligation being imposed on the NQLC to fund Mr Morgan in seeking to assemble evidence to make good the assertions he makes shows, in my opinion, that there is no justification for granting the relief sought on the notice of motion.  For these reasons I will dismiss the notice of motion.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:            13 November 2002

Counsel for the Applicant on the notice of motion:	Mr Morgan appeared in person.
Counsel for the Applicants on the record:	Mr M Dore
Solicitor for the Applicants on the record:	North Queensland Land Council Aboriginal Corporation
Counsel for the State of Queensland:	Mrs C Fewings
Solicitor for the State of Queensland:	Crown Law
Solicitor for City of Cairns Council, Council of the Shire of Eacham and Ergon Energy Corporation Ltd:	McDonnells
Date of Hearing:	8 November 2002
Date of Judgment:	8 November 2002