Wuthathi People No. 2 v State of Queensland

[2010] FCA 1103

FEDERAL COURT OF AUSTRALIA

Wuthathi People No. 2 v State of Queensland [2010] FCA 1103

Citation:	Wuthathi People No. 2 v State of Queensland [2010] FCA 1103
Parties:	JOHNSON CHIPPENDALE AND OTHERS ON BEHALF OF THE WUTHATHI PEOPLE NO. 2 v STATE OF QUEENSLAND AND OTHERS
File number(s):	QUD 6022 of 2002
Judge:	GREENWOOD J
Date of judgment:	5 October 2010
Catchwords:	NATIVE TITLE – consideration of an application for an urgent injunction to restrain the holding of an authorisation meeting convened under s 251B of the Native Title Act 1993 (Cth)
Legislation:	Native Title Act 1993 (Cth); s 61; s 251B
Cases cited:	Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 – cited
Date of hearing:	5 October 2010
Place:	Cairns
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	13
Solicitor for the principal Applicants:	Mr J Edwards, HWL Ebsworth
Lay representative appearing for the Applicants for the injunction, the Gudang Yadhaykenu People with leave:	Mr I Makaku
Solicitor for the Respondent:	Ms G Morrison, Crown Law
Solicitor for amicus curiae:	Mr M Moharich, Cape York Land Council

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6022 of 2002

BETWEEN:	JOHNSON CHIPPENDALE AND OTHERS ON BEHALF OF THE WUTHATHI PEOPLE NO. 2 Applicant
AND:	STATE OF QUEENSLAND AND OTHERS Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	5 OCTOBER 2010
WHERE MADE:	CAIRNS

THE COURT ORDERS THAT:

1.The application is 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6022 of 2002

BETWEEN:	JOHNSON CHIPPENDALE AND OTHERS ON BEHALF OF THE WUTHATHI PEOPLE NO. 2 Applicant
AND:	STATE OF QUEENSLAND AND OTHERS Respondent

JUDGE:	GREENWOOD J
DATE:	5 OCTOBER 2010
PLACE:	CAIRNS

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for an injunction under the Federal Court of Australia Act (1976) to restrain the conduct of a meeting which is to take place tomorrow at Injinoo at the northern tip of Cape York Peninsula, that is, on Wednesday, 6 October 2010. 

2. The meeting is convened pursuant to a “notice of authorisation meeting” issued under s 251B of the Native Title Act 1993 (Cth). The notice of authorisation meeting calls together traditional owners of the claim area to attend a meeting to discuss claim group description and to make amendments to a form 1 s 61 application brought on behalf of the Wuthathi People by a claim described as the Wuthathi People No. 2 application. 

3. The application today is made, of course, in one sense at the 11^th hour as the authorisation meeting is to take place tomorrow at a reasonably remote place in Cape York.  The reason for the application for the injunction is that the notice of authorisation meeting does not give notice to the descendants of apical ancestors who, it is said, ought to have been included within the description of addressees in the notice, according to the applicants.  The applicants for the injunction are two elders called Meun Lifu and George Pausa, who are the descendants of apical ancestors known as Eliza and Ela. 

4. The notice of authorisation meeting is directed to and calls for the descendants of the apical ancestors of Eliza and Ela to attend the meeting.  However, the two elders of the Gudang Yadhaykenu People who appear today have said that they wish not to attend the meeting because other apical ancestors who, in their view, ought to have been included in the notice calling together the descendants of all relevant apical ancestors were not included within the notice.  Those particular apical ancestors who ought to have been included in the notice, according to the applicants, are an individual known as Robson/Robertson and other apical ancestors who are not presently identified.  Nevertheless, the applicants contend that the notice, by reason of these omissions, is defective and fails to comply with the Native Title Act. 

5. Affidavits have been prepared in support of the application.  They were faxed to the Federal Court and have been read in support of the application.  They include an affidavit from Mr Meun Lifu, one of the elders as I have just described.  The application is also supported by an affidavit by a Mr George Pausa and the material which is exhibited to the affidavit of Mr Larry Woosup which includes a short synopsis from an anthropologist, Dr Fiona Powell, of anthropological matters.  It is on the basis of the observations of Dr Fiona Powell that it is said that there is good evidence that Gudang Yadhaykenu People have interests and rights in the subject area of the Wuthathi claim.

6. Put in simple terms, the point of the meeting is to consider the composition of the claim group and, secondly, to consider other aspects of the claim application which includes the description of the boundaries of the claim area.  The applicants are concerned on both counts.  They say that these boundary changes are matters of great moment to the Gudang Yadhaykenu People and that in substance, when one looks at the matter, the position is that there is one broader Gudang Yadhaykenu group which might be properly called the Gudang Yadhaykenu mob.

7. The applicants do not contend that the Wuthathi People have no interest in the claim area but their point is that the Gudang Yadhaykenu People have a fundamental interest themselves which has been ignored both in the calling of the meeting and in relation to some earlier arrangements with the applicants on behalf of their people which were briefly mentioned.  The question of the interests that the applicants have, or might have, is a matter which requires detailed examination and forensic examination by anthropologists, perhaps by Dr Fiona Powell and others.  However, issues going to the rights and interests of the Gudang Yadhaykenu People would require examination as to the facts and history of connection and other matters which are well known elements of claims of this kind.

8. This application is not the place or the forum to decide that question.  It cannot be decided quickly and casually and ought not to be decided in any event in the context of this application.  One of the things that must be decided is whether there is an arguable case made out on that issue in accordance with the well understood principles governing interlocutory injunctions:  Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 per Gummow and Hayne JJ at [65] to [72]; Gleeson CJ and Crennan J at [19]. The material is quite slight on this question and would require considerable further evidence from anthropologists and other deponents. There is not sufficient information before the court to decide the threshold question.

9. However, and in any event, the matter today is not to be resolved on that issue.  The real issue that governs what should occur in relation to the meeting tomorrow is this.  The meeting has been convened to occur at a reasonably remote place on the tip of Cape York.  The Cape York Land Council has expended $60,000 to convene that meeting and bring people together.  If the Court is to intervene by injunction and restrain the holding of the meeting, all of that expenditure and all of that effort, time and energy involved in gathering people together at the place nominated for the meeting, where, no doubt, many of them are already now gathered, would be entirely wasted and thrown away.

10. I can identify no utility whatsoever in wasting that money by enjoining this meeting from taking place.  If resolutions are passed at the meeting which are not sound, for one reason or another, either because the meeting was not convened properly or because the resolutions are flawed as a matter of law then, of course, the applicants can always challenge those decisions and can identify for the Court the reasons why those decisions are flawed.

11. There is no need or urgency to restrain the meeting from taking place in order to decide that question.  The meeting can take its course.  The resolutions can be passed.  People who have come together can consider the matter and reach a decision about it.  The question of the legal efficacy or validity of decisions made is a matter which can, of course, in the calm light of day be tested both when the applicants have had a chance to put on whatever material they may wish to put on in the event that they wish to challenge decisions taken at the meeting and reciprocally, a respondent can put on material which would seek to demonstrate why the resolutions are good.

12. So for those reasons, I propose to dismiss the urgent oral application for an injunction restraining the meeting, supported by the affidavit material to which I have referred.

13. Accordingly, the application is dismissed. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        5 October 2010