Que Noy v Northern Territory

Case [2007] FCA 1888

FEDERAL COURT OF AUSTRALIA

Que Noy v Northern Territory of Australia [2007] FCA 1888

NATIVE TITLE – application to replace applicant under s 66B Native Title Act 1993 (Cth) – where claim group comprises composite of three subgroups – need for decisions by claim group as identified in application – whether appropriate decisions made by claim group – whether applicant exceeded authority of the claim group

HELD – order replacing applicant made

Native Title Act 1993 (Cth) s 66B

Daniel v Western Australia (2002) 194 ALR 278 considered
Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 considered
Butchulla People v Queensland (2006) 154 FCR 233 cited
Doolan v Native Title Registrar (2007) 158 FCR 56 cited
Ward v Northern Territory (2002) 196 ALR 32 cited
Chapman v State of Queensland (2007) 159 FCR 507 cited
Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 cited
Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 cited

ARTHUR QUE NOY, GABRIEL HAZELBANE, PADDY HUDDLESTON AND MARJORIE FOSTER (ON BEHALF OF THE WAGIMAN, WARAI AND KAMU PEOPLES) v NORTHERN TERRITORY OF AUSTRALIA, TELSTRA CORPORATION LIMITED, NORTHERN GOLD NL, BRANIR PTY LTD, TOVEHEAD PTY LTD, TERRITORY GOLDFIELDS NL AND CAMELOT NORTHERN TERRITORY LIMITED

NTD 6023 OF 2001

MANSFIELD J
29 NOVEMBER 2007
ADELAIDE (BY VIDEO TO DARWIN)


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 6023 OF 2001

BETWEEN:

ARTHUR QUE NOY, GABRIEL HAZELBANE, PADDY HUDDLESTON AND MARJORIE FOSTER (ON BEHALF OF THE WAGIMAN, WARAI AND KAMU PEOPLES)
Applicant

AND:

NORTHERN TERRITORY OF AUSTRALIA
First Respondent

TELSTRA CORPORATION LIMITED
Second Respondent

NORTHERN GOLD NL
Third Respondent

BRANIR PTY LTD
Fourth Respondent

TOVEHEAD PTY LTD
Fifth Respondent

TERRITORY GOLDFIELDS NL
Sixth Respondent

CAMELOT NORTHERN TERRITORY LIMITED
Seventh Respondent

JUDGE:

MANSFIELD J

DATE:

29 NOVEMBER 2007

PLACE:

ADELAIDE (BY VIDEO TO DARWIN)

REASONS FOR JUDGMENT

INTRODUCTION

  1. In the area of the Northern Territory just south and east of Litchfield there are two applications for the determination of native title under s 61 of the Native Title Act 1993 (Cth) (the Act) to which the present issue relates. They are the Fish River Claim (Claim NTD 6028 of 2001) and this matter, the Douglas North Claim (Claim NTD 6023 of 2001). The proposed Wadeye to Ban Ban Springs (Bonaparte) pipeline (the proposed pipeline) to be constructed by the Australian Pipeline Trust runs through each of those claim areas.

  2. There are a number of areas over which there are claims for the determination of native title through which the proposed pipeline runs. On the evidence, the named applicants in each of those other claims have agreed on behalf of the respective native title claim groups to the terms upon which access should be given for the proposed pipeline. However, there is some difficulty with the applicants in the Fish River Claim and the Douglas North Claim approving the terms upon which access will be given for…

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Que Noy v Northern Territory [2007] FCA 1888
Case
[2007] FCA 1888
Decision Date

CaseChat Overview and Summary

This matter involves a dispute regarding the appropriate applicants for a motion under section 66B of the Native Title Act 1993 (Cth). The motion concerns a native title claim and the proposed replacement of the current applicant. The case was heard by the Federal Court of Australia. The primary issue before the court was whether the application under section 66B was properly brought by the appropriate persons. The court needed to determine if the application was made by the members of the claim group who were proposed to replace the current applicant, as required by the statute.

The court considered the language of the statute, which indicates that the application should be brought by "one or more members" who are authorised by the claim group. The application in this case was brought by the proposed new applicants as well as ten other members of the native title claim group, which was not in line with the statutory requirements. Despite this, the court decided to treat the motion as excluding the extra ten members, as the intent of the application was clear. The court also noted that if necessary, it would grant leave to remove those names as applicants on the motion. The court’s reasoning was based on a careful reading of section 66B(1) and its interpretation of the conditions that must be satisfied before an order can be made under the section. The court emphasised that the proposed new applicants must be authorised by the claim group to make the application and to deal with matters arising in relation to it.

The court concluded that the application was not properly brought by the extra ten members of the native title claim group and treated the motion as excluding them. The court’s decision was based on its interpretation of the statutory language and the conditions outlined in Daniel 194 ALR 278. The court’s outcome ensures that the application is brought by the appropriate persons, as required by the statute. This decision helps clarify the requirements for making a motion under section 66B and ensures that the proper applicants are involved in the process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MANSFIELD J

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Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

The second preliminary matter, is whether the appropriate persons have brought the motion under s 66B application. The Act contemplates that any application under s 66B should be brought by the members of the claim group who are proposed to replace the current applicant. That is made clear by the words “[o]ne or more members may apply” for an order that “the member, or the members jointly” replace the current applicant in the chapeau to subsection (1) and the requirement that “the member or members” in subsection (1)(b) be authorised by the claim group to make the application (emphasis added). In this matter, the s 66B application has been brought by not only those persons proposed to be the new applicant (Margaret Foster, Arthur Que Noy, Gabriel Hazelbane and Paddy Huddleston), but also by 10 other members of the native title claim group. In fact, the s 66B motion was originally brought by those same 10 persons and only two of the four proposed new named applicants. The application was amended on 7 August 2007 to include Gabriel Hazelbane and Paddy Huddleston. In my view, the application should not have been brought by the extra 10 members of the native title claim group at all, unless they were to be part of the proposed new applicant. However, as the intent of the application is clear, I will treat the motion as not including those extra 10 names. If it were necessary, I would give leave to remove those names as applicants on the motion.CONSIDERATION In Daniel 194 ALR 278 at 284, [17], French J outlined the conditions that must be satisfied before an order can be made under s 66B. they are:1.There is a claimant application.2.Each applicant for an order under s 66B is a member of the native title group.3.The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.4.Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group.5.The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. A careful reading of s 66B(1) indicates that the cumulative grounds upon which the motion under s 66B may be brought, that is, one of the two alternatives in ss (1)(a)(i) or (ii) and the ground in ss (1)(b), refer to the application for the determination of native title under s 61 of the Act. They focus upon the status of the current applicant to make the application or that applicant’s conduct in relation to that application, and upon the putative applicant’s authorisation to make and deal with matter arising in relation to that primary application. The status of the proposed new applicant to pursue the motion under s 66B require those cumulative conditions to be satisfied, but not necessarily an explicit separate authorisation by the claim group to seek an order under s 66B. That status already exists if there is an authorisation of the claim group under s 251B to make the claimant application itself and to deal with the matters arising in relation to it: see eg Ward v Northern Territory (2002) 196 ALR 32 at 38, [15]. In Daniel 194 ALR at 296, [53] that particular issue does not appear to have been contentious or therefore to have required particular remark. Nor, in my view, did it arise in Chapman v State of Queensland (2007) 159 FCR 507 to which my attention was drawn by senior counsel for Marjorie Foster.