Isaacs on behalf of the Turrbal People v State of Queensland

[2013] FCA 1004

FEDERAL COURT OF AUSTRALIA

Isaacs on behalf of the Turrbal People v State of Queensland
[2013] FCA 1004

Citation:

Isaacs on behalf of the Turrbal People v State of Queensland [2013] FCA 1004

Parties:

CONNIE ISAACS & ANOR ON BEHALF OF THE TURRBAL PEOPLE v STATE OF QUEENSLAND & ORS

DESMOND SANDY & ORS ON BEHALF OF THE YUGARA/YUGARAPUL PEOPLE v STATE OF QUEENSLAND & ORS

File numbers:

QUD 6196 of 1998
QUD 586 of 2011

Judge:

REEVES J

Date of judgment:

23 May 2013

Legislation:

Native Title Act 1993 (Cth)

Cases cited:

Starkey v South Australia (2011) 193 FCR 450; [2011] FCA 456

Date of hearing:

23 May 2013

Place:

Brisbane

Division:

GENERAL DIVISION

Category:

No catchwords

Number of paragraphs:

7

QUD 6196 of 1998

Counsel for the Turrbal People:

Ms M Barambah appeared in person

Counsel for the State of Queensland:

Ms H Bowskill

Solicitor for the State of Queensland:

Crown Law

Solicitor for the Commonwealth of Australia:

Mr MJC Henry of Australian Government Solicitor

Solicitor for APT Petroleum Pipelines Pty Limited:

Ms T Nguyen of Gadens Lawyers

Counsel for the Applicant on the interlocutory application:

Mr D Doyle appeared in person

QUD 586 of 2011

Counsel for the Yugara/ Yugarapul People:

Mr D Sandy, Ms P Sandy and Ms R James appeared in person

Counsel for the State of Queensland:

Ms H Bowskill

Solicitor for the State of Queensland:

Crown Law

Solicitor for the Commonwealth of Australia:

Mr MJC Henry of Australian Government Solicitor

Solicitor for APT Petroleum Pipelines Pty Limited:

Ms T Nguyen of Gadens Lawyers

Counsel for the Applicant on the interlocutory application:

Mr D Doyle appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6196 of 1998

BETWEEN:	CONNIE ISAACS & ANOR ON BEHALF OF THE TURRBAL PEOPLE Applicant
AND:	STATE OF QUEENSLAND & ORS Respondent

JUDGE:	REEVES J
DATE OF ORDER:	23 MAY 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The interlocutory application filed 10 May 2013 be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 586 of 2011

BETWEEN:	DESMOND SANDY & ORS ON BEHALF OF THE YUGARA/YUGARAPUL PEOPLE Applicant
AND:	STATE OF QUEENSLAND & ORS Respondent

JUDGE:	REEVES J
DATE OF ORDER:	23 MAY 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The interlocutory application filed 10 May 2013 be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6196 of 1998

BETWEEN:	CONNIE ISAACS & ANOR ON BEHALF OF THE TURRBAL PEOPLE Applicant
AND:	STATE OF QUEENSLAND & ORS Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION		QUD 586 of 2011

BETWEEN:	DESMOND SANDY & ORS ON BEHALF OF THE YUGARA/YUGARAPUL PEOPLE Applicant
AND:	STATE OF QUEENSLAND & ORS Respondent

JUDGE:	REEVES J
DATE:	23 MAY 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. According to Mr Doyle’s affidavit in support of this application, he claims he is a member of the native title claim group in these proceedings.  I take that to mean he is one of the Yugara/Yugarapul people.  Indeed, Mr Doyle has confirmed as much in his oral submissions to me.

2. Mr Doyle told me that he wants to become a respondent to the Turrbal people’s proceedings to oppose their claim to be the native title holders insofar as it relates to the land lying on both sides of the Brisbane River.

3. As I explained to Mr Doyle during his oral submissions, the overlapping claims of the Yugara/Yugarapul people and the Turrbal people to that area of land are to be heard together. That is a consequence of the provisions of s 67 of the Native Title Act 1993 (Cth). As a result, his concerns to oppose the Turrbal people’s claim to the land lying on both sides of the Brisbane River will necessarily be considered and determined as part of the concurrent hearing of the claims of the Yugara/Yugarapul and Turrbal peoples.

4. In Starkey v South Australia (2011) 193 FCR 450; [2011] FCA 456 (Starkey), Mansfield J considered at some length the position of a respondent party to proceedings who is a member of a native title claim group and who wishes to either become, or to remain, such a respondent.  His Honour observed at [56] that this situation was inconsistent with the scheme of the Act and the orderly presentation of a native title claim.  That is, it is inconsistent with those matters to allow an individual member or members of a claim group to become a separate party to a native title determination application.

5. While Mr Doyle’s position is slightly different, in that he wishes to become a respondent to the overlapping claims of the Turrbal people and his people, the Yugara/Yugarapul people, the practical effect of it is the same.

6. In Starkey, Mansfield J also discussed the position of a dissentient member of a native title claim group who seeks to dispute the authorisation of the applicant in a native title determination application proceedings. There is some hint elsewhere in his affidavit that Mr Doyle also seeks to raise that type of dispute. If that is, in part, the basis of his current application, Mansfield J concluded at [61] that, while there is no necessary legal impediment to a member of a native title claim group being joined as, or remaining, a respondent party in those circumstances, the occasions when that will occur will be rare. Since Mr Doyle’s interests as a member of the Yugara/Yugarapul people as he explained them to me and as he has set them out in his affidavit will be addressed in the concurrent hearing of these two native title determination applications, I do not consider this is one of those rare occasions where his interests justify him being joined as a respondent to the Turrbal people’s proceeding.

7. For these reasons, in the exercise of my discretion, I reject Mr Doyle’s application.  I therefore order that the interlocutory application filed 10 May 2013 be dismissed.

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:       3 October 2013