Kuuku Ya'u v State of Queensland

[2006] FCA 1500

FEDERAL COURT OF AUSTRALIA

KUUKU YA’U v STATE OF QUEENSLAND & OTHERS [2006] FCA 1500

NATIVE TITLE – application pursuant to s 84(8) of the Native Title Act 1993 (Cth) to remove parties from a proceeding.

Native Title Act 1993 (Cth)
Nature Conservation (Protected Areas) Amendment Regulation (No. 1) 2000

Byron Environment Centre Inc. v Arakwal People & Ors (1997) 148 ALR 46

KUUKU YA'U v STATE OF QUEENSLAND & OTHERS
QUD6016 OF 1998

GREENWOOD J
13 NOVEMBER 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD6016 OF 1998

BETWEEN:	KUUKU YA'U Applicant
AND:	STATE OF QUEENSLAND & OTHERS Respondent
JUDGE:	GREENWOOD J
DATE OF ORDER:	13 NOVEMBER 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Pursuant to section 84(8) of the Native Title Act 1993 (Cth), John Wolff and Nancy Wolff be removed as parties to this proceeding.

2.Paragraphs 1 and 2 of the Notice of Motion filed 1 November 2006 are adjourned to 10.15am on Friday, 9 February 2007.

3.The Applicant is given leave to file the affidavit of Karen Lynne Douglas sworn 13 November 2006. 

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	QUD6016 OF 1998

BETWEEN:	KUUKU YA'U Applicant
AND:	STATE OF QUEENSLAND & OTHERS Respondent
JUDGE:	GREENWOOD J
DATE:	13 NOVEMBER 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I have before me an Application by Notice of Motion filed on 1 November 2006 by Deborah Hobson, Ivy Hobson, Lorraine Clarmont, Donald Hobson, Albert Doctor, Cyril Rocky and Lucy Hobson on behalf of the Kuuku Ya’u claim group for an Order pursuant to s 84(8) of the Native Title Act 1993 (Cth) (‘the Act’) that John Wolff and Nancy Wolff be removed as parties.

2. Section 84(8) of the Act provides that the Federal Court may at any time order that a person, other than the Applicant, cease to be a party to the proceedings. Section 84(9) is in these terms:

   ‘84(9)The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

   (a)the following apply:

   (i)the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

   (ii)the person’s interests are properly represented in the proceedings by another party; or

   (b)the person never had, or no longer has, interests that may be affected by a determination in the proceedings.’

3. In this Application, the question is not whether John Wolff and Nancy Wolff enjoy a public right of access over, or use of, any of the area covered by the application and those interests are otherwise properly represented by another party but rather whether John Wolff and Nancy Wolff either never had or no longer have interests that may be affected by a determination in these proceedings thus enlivening s 84(9)(b). 

4. The present Kuuku Ya’u Application is a consolidation of three native title claims filed by the Kuuku Ya’u People in respect of country described as the traditional country of the Kuuku Ya’u People.  The Cape York Land Council (‘CYLC’) is the representative body of the Kuuku Ya’u native title claimants. 

5. The present proceeding (QUD6016/98) was first lodged with the National Native Title Tribunal (‘the Tribunal’) on 4 July 1995.  A second Application was lodged on behalf of the Kuuku Ya’u People with the Tribunal (QUD6120/98 – Kuuku Ya’u #2) on 7 April 1997 and a third Application was lodged with the Tribunal (QUD6197/98 – Kuuku Ya’u #3) on 26 May 1998. 

6. John Wolff and Nancy Wolff were joined as parties in proceeding QUD6120/98. 

7. The three Applications on behalf of the Kuuku Ya’u People were subsequently amended and consolidated by orders of Deputy District Registrar Robson on 24 November 1999 with the principal proceeding retaining the Court number of the first filing in time (QUD6016/98).  Any party who was a party to any of the three previous proceedings became a party to the consolidated proceedings.  Amendments were made to the consolidated Application on 20 March 2003 when the area the subject of the claim was amended to remove parcels of land in which John Wolff and Nancy Wolff held an interest. 

8. Those parcels were previously described as Lot 2 on Plan SH2, Lot 5 on SH4 and Lot 4 on SH4.  Those parcels now form part of Lot 423 on Plan NPW616.  These former parcels are no longer subject to the claim made by the Kuuku Ya’u People. 

9. The Applicant relies upon an affidavit of Glenn David Archer sworn and filed 1 November 2006, an affidavit of Tracy Robyn Laird sworn and filed 10 November 2006 and an affidavit of Karen Lynne Douglas affirmed and filed by leave today.  Ms Douglas deposes to these matters:

   (a)Ms Douglas is a solicitor employed by the CYLC.  Ms Douglas has the day to day carriage of the claim with the assistance of Mr Glenn Archer the principal legal officer employed by CYLC.

   (b)In the course of mediation of the Kuuku Ya’u claim, information has been provided by the State of Queensland in relation to tenures in the claim area.  That information reveals that John Wolff and Nancy Wolff were formerly the registered joint lessees of Special Lease 43/41959 (Title Reference 17596061) over an area formerly described as Lot 2 on Crown Plan SH2.  This ‘interest’ provided the foundation for the Application by John Wolff and Nancy Wolff to be joined as parties to the native title determination application by the Kuuku Ya’u People.  Special Lease 43/41959 expired on 31 July 1998. 

   (c)Based upon information provided by the State of Queensland, Ms Douglas says that John Wolff was also the registered lessee of Special Lease 43/31328 (Title Reference 17595222) over an area formerly described as Lot 5 on Crown Plan SH4.  Tenure searches reveal that Special Lease 43/31328 expired on 19 July 1998.  Further, Ms Douglas says that based upon information from the State of Queensland, John Wolff was the registered lessee of Special Lease 43/31327 (Title Reference 17595221) over an area formerly described as Lot 4 on Crown Plan SH4.  Special Lease 43/31328 expired on 19 July 1998. 

   (d)By Nature Conservation (Protected Areas) Amendment Regulation (No. 1) 2000, notified in the Gazette on 24 March 2000, the description of lands comprising Forbes Island National Park was amended to Lot 423 on Crown Plan NPW616.  The former Lot 2 on Crown Plan SH2 and former Lots 4 and 5 on Crown Plan SH4 were subsumed within the description for the lands comprising Forbes Island National Park by this regulation. 

10. As a result of these factual matters, Lot 2 on Crown Plan SH2 and the former Lots 4 and 5 on Crown Plan SH4 no longer form part of the claim area by reason of the amendments to the Application made on 20 March 2003 and John Wolff and Nancy Wolff no longer hold an interest as registered lessees pursuant to Special Leases over these lands. 

11. The Application by way of Notice of Motion was filed on 1 November 2006.  On 2 November 2006, Ms Tracy Laird sent a copy of the Notice of Motion and supporting affidavits either by facsimile or by express post to all Third Party Respondents listed on the Notice of Motion.  A facsimile number for John Wolff and Nancy Wolff was obtained by Ms Laird from a party report filed in the proceedings identifying each party, their representatives and contact details.  The attempted facsimile transmission of the material to John Wolff and Nancy Wolff was unsuccessful as the transmission report reveals that the facsimile of the documents was not received by the addressee.  Accordingly, Ms Laird caused the documents to be sent by express post on 3 November 2006 to John Wolff and Nancy Wolff at their address for correspondence provided to the Tribunal on 30 August 2006, namely, 23 Vasey Esplanade, Trinity Beach, Queensland, 4879. 

12. On 30 August 2006, arising out of a mediation of the native title determination claim by the Kuuku Ya’u People, the Tribunal sent a letter to John Wolff and Nancy Wolff at the above address which, in part, was in these terms:

    ‘Correspondence dated 3 September 2003 by this office was sent to you advising that searches conducted through the Department of Natural Resources and Mines (DNRM) indicated that you may no longer have a valid interest in the application area and that if you no longer have a valid interest that is affected by this claim, you may wish to withdraw as a respondent party to the claim. 

    Therefore if you no longer have an interest in the application and wish to withdraw, a form 162 titled “Notice by party other than Applicant that the party wishes to cease to be a party”, is required to be filed for those parties who no longer have a valid interest.  I have attached a copy of the Form 162 for your information.

    Carrell Ross
    Case Manager’

13. Mr Glenn Archer deposes to searches of the Federal Court Registry which failed to reveal any filing by John Wolff or Nancy Wolff of a Form 162. 

14. Ms Wrafter this morning appeared on behalf of the State of Queensland in relation to the Application.  Ms Wrafter was provided with a copy of the affidavit of Karen Douglas affirmed and filed this morning by leave in order to consider the matters put before the Court by Ms Douglas concerning information provided by the State arising out of mediation steps, concerning tenures in the claim area.  Ms Wrafter advises that the information in relation to the matters concerning the Special Leases, the expiration of those leases and the amendment of the description of the lands comprising Forbes Island National Park was provided to the Applicant based upon Departmental information.  Formal Land Registry title searches have not been conducted. 

15. However, I am satisfied, having regard to the affidavits of Glenn Archer, Karen Douglas and Tracy Laird that neither John Wolff nor Nancy Wolff continue to enjoy the interest which they held at the moment in time when they were joined as parties in the second Kuuku Ya’u claim and thus became parties to the consolidated claim. For the purposes of the Act, the interest asserted by a party need not be ‘proprietary or even legal or equitable in nature’ (Byron Environment Centre Inc. v Arakwal People & Ors (1997) 148 ALR 46 at 51, ln 43, per Black CJ). However, the interests affected must be genuine, greater than those of a member of the general public, not indirect, remote or lacking in substance, capable of clear definition and of such a character that they may be affected in a demonstrable way by a determination in relation to the Application (Byron Environment Centre Inc. v Arakwal People at 51, ln 34 to 43, per Black CJ). 

16. Having regard to the material filed in support of the Application, I am satisfied that neither John Wolff nor Nancy Wolff enjoys interests for the purposes of s 84(9)(b) that may be affected by a determination in these proceedings. 

17. I am also satisfied that John Wolff and Nancy Wolff have received notice of the Application before the Court this morning, have not sought to appear or respond to the Notice of Motion and have not filed a Form 162 in response to the letter from the Tribunal of 30 August 2006.  I am also satisfied that the election on the part of John Wolff and Nancy Wolff not to appear is consistent with evidence put before the Court by paragraph 17 of the affidavit of Glenn Archer to the effect that Mr Archer has read transcripts of prior listings of this matter before the Court and has noted that during the course of directions hearings in the matter neither John Wolff nor Nancy Wolff has appeared.  Further, Mr Archer says that during his carriage of this matter on behalf of the claimant over the last year, neither John Wolff nor Nancy Wolff has attended the mediation sessions conducted by the Tribunal. 

18. For these reasons, I have today made an Order that pursuant to section 84(8) of the Native Title Act 1993 (Cth), John Wolff and Nancy Wolff be removed as parties.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood J.

Associate:

Dated:        13 November 2006

Counsel for the Applicant:	Ms Susan Phillips
Solicitor for the Applicant:	Glenn Archer, Cape York Land Council
Solicitor for the Respondent, State of Queensland:	Ms Wrafter, on behalf of C W Lohe, Crown Solicitor
John Wolff and Nancy Wolff	No Appearance
Solicitor for Cook Shire Council	Andrew Kerr, MacDonnells
Date of Hearing:	13 November 2006
Date of Judgment:	13 November 2006