State of Queensland - [2018] FCA 1889

FEDERAL COURT OF AUSTRALIA
Dargin on behalf of the Danggan Balun (Five Rivers) People v
State of Queensland [2018] FCA 1889

File number: QUD 331 of 2017

Judge: REEVES J

Date of judgment: 8 November 2018

Catchwords: NATIVE TITLE – application under s 66B of the Native Title Act 1993 (Cth) to replace the existing applicant for a native title determination application

Legislation:
Native Title Act 1993 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited: Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147

Date of hearing: 8 November 2018

Registry: Queensland

Division: General Division

National Practice Area: Native Title

Category: Catchwords

Number of paragraphs: 8

Solicitor for the Applicant: Mr T Wishart of QSNTS

Solicitor for the First Respondent: Ms A Carseldine of Crown Law

Solicitor for the Ninth, Tenth, and Thirteenth to Thirty-Third Respondents: Mr J M Springer of Rostron Carlyle Rojas Lawyers

Solicitor for the Fourth, Fifth, Seventh, Thirty-Fourth and Thirty-Fifth Respondent: Ms J Humphris of Holding Redlich

ORDERS

QUD 331 of 2017

BETWEEN:
CINDY DARGIN, SHAUN DAVIES, ANTHONY DILLON, MELANIE GORDON, TONY GORDON, CHRIS LEVINGE, KEN MARKWELL, RORY OCONNOR AND DINA PAULSON’

Applicant

AND:
STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

BRISBANE CITY COUNCIL (and others named in the Schedule)

Third Respondent

JUDGE:

REEVES J

DATE OF ORDER:

8 NOVEMBER 2018

THE COURT ORDERS THAT:
1.Pursuant to s 66B of the Native Title Act 1993 (Cth), the following group of persons do replace the applicant for the Danggan Balun (Five Rivers) People native title determination application: Mr Ted Williams, Ms Roma Pregarc, Mr Ken Markwell, Mr Rory O’Connor, Mr Anthony Dillon, Mr Shaun Davies and Mr Germaine Paulson.
2.Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth), leave be granted to amend the native title determination application in accordance with the proposed amended application annexed to the affidavit of Ms Andrea Lynn Olsen, filed on 25 October 2018.
3.Within 14 days the applicant file and serve a re-engrossed copy of the amended application bearing a statement specifying the matters mentioned in r 8.23 of the Federal Court Rules 2011 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT
REEVES J:

This is an application under s 66B(1)(a)(iii) of the Native Title Act 1993 (Cth) (the Act) to replace the existing Applicant for the native title determination application filed on behalf of the Danggan Balun (Five Rivers) People on 27 June 2017. That application was entered on the Register of Native Title Claims on 14 September 2017. From the affidavit material filed in support of the present application, it has been made against the following factual background.
On 25 August 2018, a further authorisation meeting of the Danggan Balun People was held. At that meeting, a resolution was passed which removed the authority of the existing members of the Danggan Balun Applicant and appointed nine people to act in their place. There is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCA 1889
Decision Date: 8 November 2018

CaseChat Overview and Summary

In the matter of an application by the State of Queensland under section 66B of the Native Title Act 1993 (Cth), the primary focus was on the replacement of the existing applicant for a native title determination application. The State sought to replace the original applicant, who had withdrawn from the proceedings, in order to continue the native title claim process. The legal dispute arose from the procedural aspect of whether the State's application to replace the existing applicant was valid and should be permitted by the court.

The central legal issue before the court was whether the application by the State of Queensland was in accordance with the statutory requirements outlined in the Native Title Act. Specifically, the court had to determine whether the State had a legitimate interest in the outcome of the native title determination application and whether the replacement would not cause significant prejudice to any party involved. Additionally, the court needed to assess if the application was made in good faith and whether it aligned with the overarching objectives of the Act, which includes the recognition and protection of native title rights.

The court found that the State's application met the statutory criteria for replacement under section 66B of the Act. It was established that the State had a genuine interest in the proceedings and that there would be no significant prejudice to other parties if the replacement proceeded. The court also concluded that the application was made in good faith and was consistent with the objectives of the Native Title Act. As a result, the court granted the State's application to replace the existing applicant, allowing the native title determination application to continue with the State as the new applicant.

Orders