Jinibara People v State of Queensland
[2009] FCA 816
•17 July 2009
FEDERAL COURT OF AUSTRALIA
Jinibara People v State of Queensland [2009] FCA 816
JINIBARA PEOPLE v STATE OF QUEENSLAND and OTHERS
QUD 6128 of 1998
SPENDER J
17 JULY 2009
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 6128 of 1998
BETWEEN: JINIBARA PEOPLE
ApplicantsAND: STATE OF QUEENSLAND and OTHERS
Respondents
JUDGE:
SPENDER J
DATE OF ORDER:
17 JULY 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.Each Notice of Motion filed on 6 February 2009 seeking joinder be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 6128 of 1998
BETWEEN: JINIBARA PEOPLE
ApplicantsAND: STATE OF QUEENSLAND and OTHERS
Respondents
JUDGE:
SPENDER J
DATE:
17 JULY 2009
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 6 February 2009, Notices of Motion were filed by Mr Nurdon Serico and Dr Eve Fesl seeking orders that each be joined as a party to proceedings QUD 6128 of 1998, the Jinibara People claim.
When the matter was first heard on 6 March 2009, I indicated that, as the submissions by the Jinibara applicant had pointed out, the material filed by Mr Serico was inadequate. It did not demonstrate an interest in the land that could be comprehended by the Jinibara claim and any determination made in that matter. This position is complicated by the fact that it appears that neither Mr Serico nor Dr Fesl fully appreciate the requirements in respect of joinder and that they are concerned more with the “bigger picture”.
Regardless of what happens on this application, it is still open and still competent for the applicants for joinder to discuss with the Jinibara claimants and with Queensland South Native Title Services, as their solicitors, how the claim might be progressed.
There is not the slightest doubt about the distinguished history and contribution that Mr Serico has made, nor to his standing in relation to indigenous matters. Similarly, in relation to Dr Fesl. However, the requirement for joinder is one which is specified by s 84(5) of the Native Title Act 1993 (Cth) (the Act) and the material does not establish the requirements for joinder.
In Munn v The State of Queensland [2002] FCA 486, Emmett J considered that as the Act provides that there can be only one determination per area, it is appropriate for everyone who has a claim over the area to be entitled to become a party.
In the present application for joinder, notwithstanding that they were claimants in a Gubbi Gubbi claim which was withdrawn, and that that withdrawn claim did in fact overlap part of the area covered in the Jinibara application, neither Dr Fesl nor Mr Serico claim that they hold native title over the area. They merely assert in their material that they have certain rights and interests.
Now, it may be, as Dr Fesl last indicted, that a claim will be advanced as a successor in a way to the Gubbi Gubbi claim which was withdrawn. Be that as it may, there is simply no material to indicate that either Dr Fesl or Mr Serico claim that they hold native title over any of the area of the Jinibara claim.
It clearly is in the interests of everybody that there be a frank, honest discussion as to how the whole matter might be resolved.
Nothing I say in relation to the applications for joinder should be taken to prejudice, in the slightest, the desirability of the determination for any particular area. All I am concerned with today is the question of evidence. I have given now at least three opportunities to provide evidence identifying what is required to be evidenced for a joinder under s 84(5) of the Act. In particular, on 24 April, I ordered the applicants on the Motion depose to:
(a)Whether they claim to hold native title to the whole or any part, identifying the part of the Jinibara claim area;
(b) How their interests may be affected by a determination of native title; and
(c)The traditional laws and customs acknowledged and observed by them that give rise to the asserted rights referred to in annexure A of the affidavits filed on 7 April 2009.
Now Mr Serico fails to depose to or declare whether he is claiming, or claims to hold, native title in the area shown on the map annexed to his affidavit. Leaving aside issues relating to relevance, the affidavits, as a whole, fail to address the questions which I made plain have to be addressed: does Mr Serico claim, or is he claiming, to hold native title in the area he has referred to; and secondly, how their interests may be affected by a determination of native title in the Jinibara People’s claim. Mr Serico deposes exhaustively as to his native rights and interests, but he does not demonstrate or articulate clearly how those interests might be affected by a determination in the Jinibara proceedings.
Mr Serico’s affidavit filed on 14 May 2009 also fails to provide any evidence of the traditional laws and customs that give rise to the rights and interests that are claimed over the area of the Jinibara People’s claim. Instead, paragraphs 1 to 3 of his affidavit merely make assertions that demonstrate no proper basis for why the Court should exercise its discretion in favour of his application for joinder. I regret to say that neither Mr Serico nor Dr Fesl have complied with my directions of 24 April.
I am, as I have indicated, not in the slightest doubting the important and distinguished contribution the applicants on the Motion have made, nor do I doubt that somewhere in the background there is an assertion that somehow they have a claim to at least part of the Jinibara People’s area. There is just no material to demonstrate a proper basis for joinder and, unfortunately, in those circumstances each application for joinder is dismissed.
Having done that, it does not resolve the big question, and I want to make it quite plain that there is simply no reason why the offer which is open in respect of discussion to try and get a resolution to the question of a determination of native title cannot proceed. What people have to understand is that, under the Act, there can only be one determination in respect of a particular area. There cannot be overlaps. And because that is what the Act says, that is what in fact the Court is obliged to do. Unless and until native title parties accept that there can be, under the Act, only one determination per area, it is clearly in their interests to try and get a resolution to that so that there can be a recognition of native title to the entirety of the area.
I will say nothing more about it, except the orders are as I have indicated, each Notice of Motion filed on 6 February 2009 seeking joinder be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 3 August 2009
Solicitor for the Applicant: Queensland South Native Title Services Solicitor for the Respondent:
Applicants on the Motion appeared in person
Crown Law
Date of Hearing: 17 July 2009 Date of Judgment: 17 July 2009
0