Surat Basin Rail Pty Ltd v Gangulu People
[2009] QLC 43
•20 March 2009
LAND COURT OF QUEENSLAND
CITATION:Surat Basin Rail Pty Ltd v Gangulu People & Ors [2009] QLC 0043
PARTIES:Surat Basin Rail Pty Ltd as agent for and on behalf of Surat Basin Rail Joint Venture
(applicant)
- and –
Mr Louis Boyd Toby, Mr Colin Gordon Hutchison, Mr Robert Kerry Toby Jnr, Ms Edna Joan Fraser, Ms Karen Lorraine Austin, Ms Lynette Gail Blucher, Ms Valerie Grace Hayes, Ms Viola Tuahine on behalf of the Gangulu People
(first respondent)- and –
Chief Executive, Department of Natural Resources and Water
(statutory party)
FILE NO:CHA00005/2009
PARTIES:Surat Basin Rail Pty Ltd as agent for and on behalf of Surat Basin Rail Joint Venture
(applicant)
- and -
Mr Louis Boyd Toby, Mr Colin Gordon Hutchison, Mr Robert Kerry Toby Jnr, Ms Edna Joan Fraser, Ms Karen Lorraine Austin, Ms Lynette Gail Blucher, Ms Valerie Grace Hayes, Ms Viola Tuahine on behalf of the Gangulu People
(first respondent)
- and -
Mr Kevin Clancy, Mr Desmond Dodd, Mr Gary Dodd, Ms Thel Gooda, Ms Mavis Garrett, Ms Phyllis Lea, Ms Jennifer Wragge, Ms Lynette Bligh, Ms Melanie Pope, Mr Noel Pope, Mr Clifton Saltner and Mr Brian Clancy on behalf of the Wulli Wulli People
(second respondent)
- and -
Chief Executive, Department of Natural Resources and Water
(statutory party)
FILE NO:CHA00006/2009
DIVISION:Land Court of Queensland – Cultural Heritage Division
PROCEEDING: Determination of preliminary question
DELIVERED ON: 20 March 2009
DELIVERED AT: Brisbane
HEARD AT:Brisbane
MEMBER:Mr PA Smith
ORDER:1. In answer to the preliminary question “whether the first respondent is an “endorsed party” within the meaning of the Aboriginal Cultural Heritage Act 2003 (Qld) for the purpose of a cultural heritage management plan”, answer Yes.
2.Mr Robert Kerry Toby Jnr is not an endorsed party for the CHMP in his own, individual right.
CATCHWORDS: Cultural Heritage Management Plan – meaning of aboriginal party – whether an individual may be an aboriginal party – whether individual may respond on behalf of a collective – customs and practices of the indigenous group – uncontested evidence – purposes of the Aboriginal Cultural Heritage Act 2003
APPEARANCES: Mr B Zillman, Allens Arthur Robinsons Solicitors, on behalf of the applicant
Ms M McLennan of Counsel, instructed by D & G Lawyers, solicitors for the first respondent
Mr J Moss, A/Principal Lawyer, Legal Services, Department of Natural Resources and Water, statutory party
Background
Surat Basin Rail Pty Ltd as agent for and on behalf of the Surat Basin Rail Joint Venture (the applicant) proposes the construction of a rail line from the vicinity of Wandoan to Banana, covering a distance of approximately 210 kilometres. The proposed rail corridor traverses three registered native title claim areas, those being of the Iman People #2, the Wulli Wulli People and the Gangulu People. The registered native title claims of the Wulli Wulli People and the Gangulu People overlap for part of the rail corridor. The rail corridor is referred to as either the Surat Basin Rail Project or the Southern Missing Link Rail Project. For the purposes of this decision I will refer to it simply as the rail corridor. As the rail corridor requires an Environmental Impact Statement, pursuant to the Aboriginal Cultural Heritage Act 2003 (the ACHA), the applicant is required to obtain approved cultural heritage management plans (CHMP) under the ACHA.
The material reveals that the applicant has reached agreement with both the Iman People #2 and the Wulli Wulli People as to the terms of CHMPs with each group. The agreed CHMP between the Wulli Wulli People and the applicant includes the disputed land which is subject to registered native title claim by both the Wulli Wulli People and the Gangulu People. The material also shows that no agreement has been reached with the Gangulu People by the applicant as to the terms of a CHMP with that group.
Acting on advice provided by the statutory party, on 24 December 2008 the applicant filed two originating applications in the Land Court pursuant to the ACHA seeking approval for draft CHMPs relating to that area of the rail corridor located within the Gangulu People’s registered native title claim area. Matter no. CHA00005/2009 is the applicant’s application for a CHMP with respect to that part of the Gangulu People’s native title claim area which is exclusively claimed by the Gangulu People, whilst matter no. CHA00006/2009 relates to the proposed CHMP for that area of land subject to the overlapping registered native title claims of the Gangulu People and the Wulli Wulli People.
In making both applications to the Land Court, the applicant proceeded on the advice of the statutory party that a member of the Gangulu People, Mr Robert Kerry Toby Jnr, who is also a registered native title claimant for the Gangulu People, was an aboriginal party for the purposes of the ACHA and, accordingly, an endorsed party under the ACHA for the purposes of negotiating the CHMP. In simple terms, the then view of the statutory party was that in circumstances where a number of indigenous persons are collectively registered as a native title claimant, each of those persons may individually be an endorsed party pursuant to the ACHA. The statutory party’s view in this regard preceded the decision of the Land Court in Xstrata Coal Queensland Pty Ltd & Ors v Russell Tatow & Ors.[1]
[1] [2008] QLC 0226.
In Xstrata, the Land Court determined that for the purposes of the ACHA there can only be a single “aboriginal party” which is made up of all individual registered native title claimants acting collectively; and that individual respondents are not able to act individually – the persons who jointly comprise the registered native title claimant (and therefore the aboriginal party) as a whole must act collectively.[2] In light of the Land Court’s decision in Xstrata, the statutory party changed its view as to the ability of an individual who comprises part of a registered native title claimant to be endorsed individually as an aboriginal party under the ACHA. In this regard, I note that the view of the statutory party now confirms with that which has at all times been put to it by the applicant.
[2] See Xstrata at para 12.
At a directions hearing conducted on 13 February 2009, it was submitted by both the applicant and the statutory party that, in light of the Land Court’s decision in Xstrata, Mr Toby could not be individually recognised as an endorsed party under the ACHA. It was also submitted that Mr Toby’s notice to become a party could only be read as an individual response, meaning that the Gangulu People had not become an endorsed party within the specified time and that, as the Gangulu People were not an endorsed party, the Land Court did not have jurisdiction to hear the applications made by the applicant in either matter. By consent of the parties, it was agreed that the following preliminary question be considered by the Land Court:
“Whether the first respondent is an ‘endorsed party’ within the meaning of the Aboriginal Cultural Heritage Act 2003 (Qld) for the purpose of the cultural heritage management plan”.
As the determination of the preliminary question was not directly relevant to the Wulli Wulli People, the Wulli Wulli People consented to the Court proceeding by way of the above preliminary question and all parties consented to the Wulli Wulli People being excused from participation in the hearing of the preliminary question.
Hearing of the preliminary question
The preliminary question was heard by the Land Court in Brisbane on 4 March 2009. The applicant was represented by Mr Zillman, a solicitor with the firm Allens Arthur Robertson. The Gangulu People were represented by Ms M McLennan of Counsel, instructed by D & G Lawyers, whilst Mr J Moss, an acting principal legal officer with the Department of Natural Resources and Water, represented the statutory party.
Evidence relevant to the determination of the preliminary question was predominantly contained either in the original applications in each matter or in affidavit evidence provided by the respective parties. Importantly, although some affidavit evidence was provided quite late in the proceedings, no party required any person to be cross-examined on their affidavit evidence.
Although it at first appeared that Ms McLennan would submit for the Gangulu People that Mr Toby could be an endorsed party in his own right as an individual, it became apparent both from the evidence submitted by the Gangulu People and by Ms McLennan’s written submissions in reply and her oral submissions that the position of the Gangulu People was that Mr Toby was not an endorsed party in any individual capacity, but rather that he was authorised on behalf of the Gangulu People to respond on their behalf and that the Gangulu People are the endorsed party pursuant to the ACHA.
Analysis of the evidence
Seven affidavits were filed by the parties, four on behalf of the applicant and three for the Gangulu People. In addition, brief oral evidence was provided by Ms McLennan on behalf of the Gangulu People. In the main, the evidence in this matter is not controversial. However, there are some differences in the evidence which require further observation by the Court. Additionally, the parties have very different views as to the legal implications which flow from the evidence. Set out below are the relevant facts. I have only descended into an analysis of the respective evidence on behalf of the applicant and the Gangulu People when warranted to determine factual issues otherwise in dispute.
By registered native title claim no. QC97/036, the Gangulu People are a registered native title claimant for an area of land in Queensland which includes part of the applicant’s rail project area. The registered native title claim also overlaps in part registered native title claim no. QC00/007 by the Wulli Wulli People. The National Native Title Tribunal register extract shows the following persons as applicants in the Gangulu People native title claim:
“Mr Louis Boyd Toby, Mr Colin Gordon Hutchison, Mr Robert Kerry Toby Jnr, Ms Edna Joan Fraser, Ms Karen Lorraine Austin, Ms Lynette Gail Blucher, Ms Valerie Grace Hayes, Ms Viola Tuahine”
It is not disputed that Mr Colin Hutchnison and Ms Valerie Hayes are both now deceased.
On 9 April 2008 the applicant issued two notices under Part 7 of the ACHA to the Gangulu People under cover of a letter dated 9 April 2008. The covering letter was addressed to “The Gangulu People C/O Gurang Land Council (Aboriginal Corporation)”. Both notices related to a proposed CHMP for the rail corridor pursuant to the ACHA and contained the following statement:
“If you are an Aboriginal party (as defined by Part 4 of the Aboriginal Cultural Heritage Act 2003) or you have been nominated to act on their behalf and you wish to take part in the Cultural Heritage Management Plan, you must give a written notice to Surat Basin Rail Pty Ltd advising that you wish to take part by 16 May 2008.”
It would appear that the Gurang Land Council Aboriginal Corporation on 10 April 2008 on-forwarded both notices to each of the named applicants for the Gangulu People’s registered native title claim.[3] The Gurang Land Council Aboriginal Corporation’s letter advised each applicant that “the proponent has allowed until the 16th of May for the applicants of the Gangulu Native Title Determination Application to respond and therefore become an endorsed party to the CHMP”.
[3] See Annexure A to the affidavit of Lynette Gail Blucher of 25 February 2009.
Written responses were provided to the applicant on Tuesday 13 May 2008 and were received by the applicant on 14 May 2008. Due to the critical nature of these notices, images of both notices are set out hereunder (with signatures omitted):
On 20 May 2008 Robert Toby forwarded an email to Warren McReight, a senior employee of the applicant. The email was also Ccd to two other addresses. Mr Toby’s email is in the following terms:
“Hi Warren,
Just a quick email to confirm a few things,
· I just want to confirm you receive my notice to be a party to CHMP;
· I know at the last meeting we had said we were considering Mike Owens as our legal rep, but a situation has arisen where he no longer represents us in any matters concerning Native Title or Cultural Heritage.
· Our new nominated legal rep is Robert Boyd Carroll.
◦ Contact Details
▪ Higgins Chambers
▪ Level 29 Hitachi Building
▪ 239 George St
▪ Brisbane Qld 4000
▪ Telephone: (07) 3003 0323
▪ Mobile: 0425 255 616
▪ Email: [email protected]
• Could you please confirm the payment arrangements for negotiating the CHMP including sitting fees and travel costs.
• I am recommending that all future meetings be held in Biloela as this is the main service centre in our traditional country and the most appropriate place to negotiate the CHMP.
• I am recommending that the next meeting be held on 20-23 June 2008, I think it would be useful to allocate some time on the first day to address all of the Applicants in the same room.
I look forward to your response in this matter.
Regards
Robert Toby
Gangulu Native Title Applicant
Gangulu Senior Negotiator
Gangulu Historian
Treasurer, Toby Gangulu Inc.”
On 26 May 2008, Mr McReight replied to Mr Toby in the following terms:
“Robert, thank you for your email of the 20 May 2008 regarding the development of a CHMP for the Surat Basin Rail Project. I have sort legal advice with regard to your submission and I am advised that under the Aboriginal Cultural Heritage Act 2003 if there is a registered native title claimant for the area, then they will be the ‘Aboriginal Party’ for the area. A registered native title claimant is defined as the persons whose name appears on the Register of Native Title Claims as the applicant. As advised by our legal support, this means all of the applicants are the registered native title claimants, that is eight in total with you being one of them.
SBR is prepared to work with and endorse the Gangulu people as we develop in partnership the CHMP for the project. I am not in a position to endorse individual traditional owner applicants.
With this said, I would like to move forward on the following basis:
1) I will be prepared to accept Robert Boyd Carroll as the legal representative for the Gangulu people as we develop the CHMP.
2) I will discuss the proposed first meeting date of the 22-23 June 08 with my technical support, Mr Steve White, but at this stage the meeting should be locked in for a suitable venue in Biloela.
3) Once the meeting date and location has been agreed, our proposed meeting fees and travel costs proposals will be sent to the Gangulu through your legal representative. The proposed fees will have synergy with rates agreed with other traditional owners impacted by this project.
I will advise you by then end of this week with regard to the upcoming meeting and our fee proposals.
Regards
Warren McReight”
The oral evidence of Ms McLennan is that she had a conversation with Robert Carroll of Counsel and that Mr Carroll advised her that he had never had any communications from Surat Basin Rail in regards to the CHMP.[4] Ms McLennan’s evidence was not challenged at all by way of cross-examination. I accordingly accept that the applicant has had no communications with Mr Carroll of Counsel regarding the CHMP.
[4] See Transcript page 42.
Lynette Blucher, a member of the Gangulu People and a registered claimant on behalf of the Gangulu People, received the letter from the Gurang Land Council Aboriginal Corporation of 10 April 2008 enclosing the applicant’s two notices pursuant to the ACHA regarding the rail corridor. Ms Blucher had previously, on 10 and 31 March 2008, attended informal meetings with Robert Toby and Debbie Toll from the Gangulu’s and Mr Steve White and Mr Warren McReight from the applicant, with Mr Luke Godwin, an archaeologist for the Gangulu People, also attending the second meeting. Ms Blucher has provided the following evidence as to the actions she took subsequent to receipt of the letter of 10 April 2008 from the Gurang Land Council:[5]
“7. On 14 May 2008 I rang Mr Warren McReight and spoke to his secretary Colleen who told me that Mr McReight was not available as he was in Sydney. I told her I was responding to the Notice and she would get back to me in the afternoon or next day after she has spoken with Mr McReight.
8. Later that day Colleen rang me back and told me I did not have to respond to the notice to become an Endorsed Party as Robert Toby had done so and that I would be covered. I noted these conversations at the bottom of the letter annexed to this affidavit and marked with the letters ‘A’ is a true copy of these notes written on the said letter.”
In my view the handwritten endorsement on annexure “A” to Ms Blucher’s affidavit is consistent with her evidence.
[5] See Affidavit of Ms Blucher of 25 February 2009.
Evidence as to what occurred during Ms Blucher’s telephone conversation with the applicant has also been provided by Ms Colleen Lamb.[6] Ms Lamb gives the following account of her telephone conversations with Ms Blucher:
“4. I have reviewed my daily diary for 14 May 2008 and my notes indicate that I did speak to Ms Blucher on that date. However, my notes of what was said differs from what is specified in the First Respondent’s Outline of Submissions.
5. Ms Blucher contacted SBR and asked to speak to Mr Warren McReight. Mr Warren McReight was not in the office that day and I therefore took a message. I obtained Ms Blucher’s mobile telephone number and noted that she had a question regarding a response being required in writing with regard to the Gangulu People. This is all of the information my notes contain.
6. I have no recollection of informing Ms Blucher that she did not have to respond to the Part 7 notice to become an endorsed party on the basis that Mr Toby had already done so. Given that I had only been employed by SBR for two months and my role is of an administrative nature, I do not believe that I would have confirmed that course of action to Ms Blucher. At that point in time, I had no knowledge of who the Gangulu People were and little understanding of the cultural heritage process. It would not have been within my knowledge to answer Ms Blucher’s question. This type of query is one that would have to have been answered by Mr Warren McReight.”
[6] See Affidavit of Colleen Lamb of 23 February 2009.
In regard to this seemingly conflicting evidence, during submissions I had the following exchange with Mr Zillman:[7]
“MR SMITH: Mr Zillman, the trouble with all of that is that it is very concise and very appropriate European law and the purposes of the Act clearly set out an acknowledgement and an upholding of Aboriginal traditional law and custom and part of that, of course, relates to Aboriginal evidence. I have little doubt that the recollections of the staff regarding the phone call are accurate from their perspective, but I also have little doubt that the account given by the Aboriginal lady are also true and correct in her mind and you can well imagine from my experience of decades in dealing with Aboriginal people that the statement may have been more of a form of speaking by the Aboriginal person in a way they were questioning that the response being non-responsive from a European perspective may have been seen as an affirmation by the Aboriginal person. I could very well imagine how that would be the case so that both sides would go away with a very clear account of what happened in that conversation and both accounts be true and both accounts be completely different.
MR ZILLMAN: And from the applicant’s point of view, sir, we agree. We say that we do not dispute that Miss Blucher’s handwritten notes are her understanding of exactly what she was told in that conversation.”
[7] At transcript pages 5-6.
On 31 July 2008 Mr Graham Dooley, the Chief Executive Officer and Project Director for the applicant, wrote to the Gangulu People c/- Queensland South Native Title Services Limited. The letter advised the Gangulu People of the applicant’s view that there was no aboriginal party within the definitions of the ACHA as Mr Toby acting in isolation as an individual could not be an aboriginal party. The correspondence went on to discuss a draft CHMP and consider a process for meetings between the applicant and the Gangulu People. A copy of the letter of 31 July 2008 was not provided to Mr Carroll of Counsel.
Meaning of ‘aboriginal party’ under the ACHA
The Land Court in Xstrata examined in some detail the meaning of the term ‘aboriginal party’ pursuant to the ACHA.[8] I see no reason to depart from the reasoning in Xstrata in the case at hand. In order to assist the parties, and in particular the indigenous parties, with their understanding of the previous Land Court decision in Xstrata, the following paragraphs are extracted from the Xstrata decision, with necessary changes to make such passages applicable to the current proceedings.[9]
[8] See Xstrata [2008] QLC 0226 at paragraphs [3]-[13].
[9] See Xstrata at paragraphs [7]-[12]. The key change in the paragraphs that follow relate to reference to the Gangulu People instead of the Iman People #2.
The ACHA defines who an “Aboriginal party” is for the purposes of the ACHA. Under s.35(1) of the ACHA, a “native title party” for an area is an Aboriginal party for the area. Under s.34(1), a native title party for an area is (so far as is relevant in this matter) a “registered native title claimant” for the area.
The ACHA definition of “registered native title claimant” references and adopts the definition of the term in the Native Title Act 1993 (Cth) (“NTA”). Under the NTA, a registered native title claimant is defined as “a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to land or waters”. Under s.61(2)(c) of the NTA, the persons are jointly the applicant.
Therefore, the “Aboriginal party” for the cultural heritage management plan is all of the people named as applicants on the Gangulu people listed as claimants on registered native title claim. As previously set out, there are eight Gangulu people listed as claimants on the registered native title claim, two of whom are deceased. As all of these people comprise the “registered native title claimant”, all of these people collectively are the “Aboriginal party”.
There is a substantial body of case law (in the native title context) which has considered the meaning of the term “registered native title claimant” and which clearly establishes the legal precedent that:
(a) regardless of the number of applicants listed on a native title claim, there is only one “registered native title claimant” for a native title claim which is constituted by all of the individuals named as the registered native title claimant acting jointly;
(b) each individual claimant who collectively constitutes the registered native title claimant is not a separate native title party in their own right, and is not at liberty to act individually; and
(c) individual claimants are merely representatives of the claimant group and have no personal interest other than members of the claimant group. For this reason their interests do not differ from each other or from the claimant group and they do not have a right to separate representation or to take a position contrary to that taken by the other named claimants.[10]
[10] Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha people, NNTT WF99/5, [2000] NNTTA 75 Hon C J Sumner, 24 February 2000;
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, NNTT WF01/2, [2001] NNTTA 50 Hon C J Sumner, 22 June 2001 at [19] – [20];
Johnson (on behalf of the Barkandji (Paakantyi) People) v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 per Stone J at [8];
Gary Dimer and Others on behalf of the Widji People, Elizabeth Sambo, Dennis Sambo, Dorothy Dimer, Carlene Sceghi, Linda Champion and Nancy Wilson; Anne Joyce Nudding and Majorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes [2003] NNTTA 117 Hon C J Sumner, 18 November 2003 at [19] and [29];
Mt Gingee Munjii Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Franham, on behalf of the Gunai/Kurnai People [2003] NNTTA 125 Hon C J Sumner, 22 December 2003, at [22] – [26] and [36];
Linda Champion & Ors on behalf of the Central West Goldields People; Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People; Leonne Velicknoic on behalf of the Widji People/Siberia Mining Corporation Ltd/Western Australia [2004] NNTTA 26 Hon C J Sumner, 13 April 2004 at [14], [17] and [18];
Norman Brown & Ors (Barada Barna Kabalbara and Yetimarla People #4 / Queensland / Midas Resources Limited, [2005] NNTTA 3 Hon J Sosso, 4 February 2005 at [23].
Although the case law cited in paragraph [27] is in the native title context, as the ACHA adopts the definition of “registered native title claimant” from the NTA, in my view the same interpretation applies for the ACHA such that:
(a) there is only a single “Aboriginal party” which is made up of all individual registered native title claimants acting collectively; and
(b) in the circumstances of this case, individual respondents are not able to act individually – the persons who jointly comprise the registered native title claimant (and therefore the Aboriginal party) as a whole must act collectively.
In light of the above, I am in no doubt that Mr Toby is unable to be endorsed in his own right, as an individual, as an aboriginal party to the CHMP. It must be stressed that these comments apply only with respect to individuals who are registered native title claimants on behalf of a group. In particular, pursuant to s.35(7) of the ACHA, an individual can clearly be an aboriginal party in circumstances where there is no native title party for an area. Although the provisions set out in s.35(7) do not specifically relate to the case at hand as there is a registered native title claimant for the area concerned, such provision is of importance when I turn to consider the objects of the legislation and how those objects assist in an understanding of s.35 of the ACHA generally.
Purpose of the ACHA
Section 4 of the ACHA clearly sets out the main purpose of the Act, which is “to provide effective recognition, protection and conservation of Aboriginal cultural heritage”.
Section 5 of the ACHA sets out the principles underlying the Act’s main purpose as follows:
“5 Principles underlying Act’s main purpose
The following fundamental principles underlie this Act’s main purpose—
(a) the recognition, protection and conservation of Aboriginal cultural heritage should be based on respect for Aboriginal knowledge, culture and traditional practices;
(b) Aboriginal people should be recognised as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage;
(c) it is important to respect, preserve and maintain knowledge, innovations and practices of Aboriginal communities and to promote understanding of Aboriginal cultural heritage;
(d) activities involved in recognition, protection and conservation of Aboriginal cultural heritage are important because they allow Aboriginal people to reaffirm their obligations to ‘law and country’;
(e) there is a need to establish timely and efficient processes for the management of activities that may harm Aboriginal cultural heritage.”
Section 6 of the ACHA then goes on to set out how the main purpose of the ACHA is to be achieved. I note in particular the provisions of s.6(g) which provides as follows:
“ensuring Aboriginal people are involved in processes for managing the recognition, protection and conservation of Aboriginal cultural heritage;”.
How then are the facts of the current matter to be viewed in light of the ACHA’s stated purpose to ensure the effective recognition, protection and conservation of aboriginal cultural heritage by ensuring that aboriginal people are involved in processes for managing the recognition, protection and conservation of aboriginal cultural heritage?
At face value, there is certainly some support for the contentions by the applicant and the statutory party that Mr Toby by his letters of 13 May 2008 sought to be endorsed as an individual. So much is clear by Mr Toby’s use of the words “I” and “my interest” in his letters. However, that is not the end of the matter. When one considers in detail the terms of the notices provided to the Gangulu People on 9 April 2008, there is clearly scope for confusion as to how individual native title claimants are to respond to the notice. As previously set out, the notices require a response by 16 May 2008. Although the front page of the notice refers to the “[Gangulu People (QC97/36)/The Chief Executive, Department of Natural Resources and Water/Landowners and occupiers]”, that part of the notice requiring a response from an aboriginal party warrants close examination. It is repeated below with my own emphasis added to certain words:
If you are an Aboriginal party (as defined by Part 4 of the Aboriginal Cultural Heritage Act 2003) or you have been nominated to act on their behalf and you wish to take part in the Cultural Heritage Management Plan, you must give a written notice to Surat Basin Rail Pty Ltd advising that you wish to take part by 16 May 2008.
On any reasonable reading of the highlighted words set out above, an individually named claimant to a registered native title application could certainly be forgiven for thinking that such individual was required to individually respond to the notice. Whilst it would be easy to be critical of the wording of the notice in this regard, it must be borne in mind that such notice was drafted at a time when the official view of the statutory party was that, indeed, individuals who are part of a registered native title claim group could be individually registered as aboriginal parties. In his oral submissions, Mr Zillman for the applicant indicated that the applicant had followed the statutory party’s template in this regard in drafting the notice.
Of course, if the law, simply put, is that an individual such as Mr Toby cannot, in his individual capacity, be an aboriginal party in circumstances where there is a registered native title claimant for the area, then in ordinary circumstances that would be the end of the matter. However, the facts of this matter show that these are far from ordinary circumstances.
It is clear from the evidence of Mr Toby and Ms Blucher, and from the letters of Edna Fraser and Karen Austen annexed to the affidavit of Francis Mannix of 4 March 2009, that the practices and customs of the Gangulu People is that one or more of the named applicants may respond to notices received by the named applicants in their capacity as applicants to the registered native title claim of the Gangulu People, individually on behalf of the collective. In the circumstances of the case at hand, I am satisfied that that is exactly what Mr Toby has done. To begin with, Mr Toby signed his letters of 13 May 2008 as “Treasurer”. “Native Title Applicant” and “Senior Negotiator”. The letterhead is also titled “TOBY GANGULU DAWSON & CALLIDE VALLEYS NATIVE TITLE & CULTURAL HERITAGE CUSTODIANS INC.”. I note the evidence of Ms Blucher in this regard that that corporation, together with the Palmtree Wutaru Aboriginal Corporation for Land and Culture, have been the two corporations which the Gangulu People have used administratively for cultural heritage work for the last 10 years.
In addition, the evidence of Ms Blucher regarding her understanding of her telephone conversation with Ms Lamb is consistent with the view that the Gangulu People considered that, by Mr Toby responding to the notices received from the applicant, the Gangulu People were the endorsed aboriginal party with respect to both matters.
In addition, Mr Toby’s email of 20 May 2008 to Warren McReight clearly shows that Mr Toby was speaking on behalf of the Gangulu People as a collective with respect to the CHMP, even though he refers to ‘my notice to be a party’ early in the email (a full text of the email is set out earlier in this decision). Mr Toby’s email goes on to refer to “our new nominated legal rep” and to an opportunity being made available at a meeting “to address all of the Applicants in the same room”. These are clearly not the words of a person who is enunciating an individual claim, but are clearly consistent with the practices of the Gangulu People as a collective whole.
The applicant has sought to make much of Mr McReight’s email to Mr Toby of 26 May 2008, again set out in full earlier in this decision. In my view, the wording of such email is somewhat vague. Although the first paragraph clearly sets out that an individual cannot be an aboriginal party where there is a registered native title claimant for an area, the words in the second paragraph which state that “SBR is prepared to work with and endorse the Gangulu People as we develop in partnership the CHMP for the project” could easily be taken by the Gangulu People to be a reference to the applicant having endorsed Mr Toby, not as an individual, but the Gangulu People, through Mr Toby’s response, as the aboriginal party for the area.
Mr Zillman by his submissions contends that applicants will be placed in a difficult position whenever they receive individual responses from registered native title claimants with respect to future ACHA notices. In my view, any confusion that may arise in the future may be overcome in a number of ways. Firstly, the initial notice provided by an applicant could be much more clearly drafted in stating the requirement for the registered native title claimant group to be made an aboriginal party to a CHMP, rather than the current reference to the word “you”. Secondly, it will be within the knowledge of all applicants such as the applicant in this matter, as to who is or is not a registered native title claimant for any registered native title claim. For instance, in the case at hand it would have been a very simple matter to check the register of native title claims to establish the identify of each of the individual registered claimants for the Gangulu People and cross-check to see if any of those individuals had responded to the notice. Logically, consistent with the purpose of the ACHA, any such responses should then be treated as responses by the claimant group unless there is evidence to the contrary.
With respect to my last point above, it is pertinent to note that, in the case at hand, the applicant has done exactly as I have suggested. I note that when both these applications were filed in the Land Court on 24 December 2008, the first respondent was stated by the applicant to be the eight named Gangulu native title claimants already referred to “on behalf of the Gangulu People”. Not even in commencing each application did the applicant name Mr Toby as an individual aboriginal party in his own right. In my view, the only response consistent with the purpose of the ACHA is that the named first respondent, the Gangulu People, is the aboriginal party for both matters.
The wording of the preliminary question causes some difficulty in giving the final orders on this matter. The preliminary question is worded as follows “whether the first respondent is an ‘endorsed party’ within the meaning of the Aboriginal Cultural Heritage Act 2003 (Qld) for the purpose of the cultural heritage management plan”. Clearly, when the terms of the preliminary question were agreed to by the parties, each of the parties had it in their minds that Mr Toby as an individual is currently the first respondent to these proceedings. However, as has been noted, the first respondent in each proceedings is actually the collective individually named aboriginal native title claimants on behalf of the Gangulu People. Accordingly, as the Gangulu People as a collective are in fact the first respondent to each of the proceedings, the answer to the preliminary question must be Yes. To remove any doubt, I will further order that Mr Toby is not an endorsed party for the CHMP in his own, individual right.
Orders
1.In answer to the preliminary question “whether the first respondent is an “endorsed party” within the meaning of the Aboriginal Cultural Heritage Act 2003 (Qld) for the purpose of a cultural heritage management plan”, answer Yes.
2.Mr Robert Kerry Toby Jnr is not an endorsed party for the CHMP in his own, individual right.
PA SMITH
MEMBER OF THE LAND COURT
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