Wyman on behalf of the Bidjara People v State of Queensland
[2012] FCA 921
•18 July 2012
FEDERAL COURT OF AUSTRALIA
Wyman on behalf of the Bidjara People v State of Queensland [2012] FCA 921
Citation: Wyman on behalf of the Bidjara People v State of Queensland [2012] FCA 921 Parties: BRENDAN WYMAN & ORS ON BEHALF OF THE BIDJARA PEOPLE v STATE OF QUEENSLAND & ORS
KEVIN ALBURY & ORS ON BEHALF OF THE KARINGBAL PEOPLE #2 v STATE OF QUEENSLAND & ORS
CHARLES STAPLETON & ORS ON BEHALF OF THE BROWN RIVER PEOPLE v STATE OF QUEENSLAND & ORS
CHARLES STAPLETON & ORS ON BEHALF OF THE BROWN RIVER PEOPLE #2 v STATE OF QUEENSLAND
KEVIN ALBURY & ORS ON BEHALF OF THE KARINGBAL PEOPLE #3 v STATE OF QUEENSLAND
File number: QUD 216 of 2008
QUD 23 of 2006
QUD 245 of 2011
QUD 301 of 2012
QUD 310 of 2012Judge: REEVES J Date of judgment: 18 July 2012 Date of hearing: 18 July 2012 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 29 QUD 216 of 2008
Counsel for the Applicant:Mr Ambrose SC and Mr Stephens
Solicitor for the Applicant: Trevor Hauff Lawyers Solicitor for the State of Queensland: Ms C Taggart of Crown Law Solicitor for the various Pastoralists: Mr M Boge of Thynne & Macartney QUD 23 of 2006 and
QUD 310 of 2012Counsel for the Applicant: Mr Creamer Solicitor for the Applicant: Redmond & Redmond Solicitor for the State of Queensland: Ms C Taggart of Crown Law Solicitor for the various Pastoralists: Mr M Boge of Thynne & Macartney QUD 245 of 2011 and
QUD 301 of 2012Counsel for the Applicant: Mr Waters Solicitor for the Applicant: Robert Powrie Solicitor for the State of Queensland: Ms C Taggart of Crown Law Solicitor for the various Pastoralists: Mr M Boge of Thynne & Macartney
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 216 of 2008
BETWEEN: BRENDAN WYMAN & ORS ON BEHALF OF THE BIDJARA PEOPLE
ApplicantAND: STATE OF QUEENSLAND AND OTHERS
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 23 of 2006
BETWEEN: KEVIN ALBURY & ORS ON BEHALF OF THE KARINGBAL PEOPLE #2
ApplicantAND: STATE OF QUEENSLAND AND OTHERS
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 245 of 2011
BETWEEN: CHARLES STAPLETON & ORS ON BEHALF OF THE BROWN RIVER PEOPLE
ApplicantAND: STATE OF QUEENSLAND AND OTHERS
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 301 of 2012
BETWEEN: CHARLES STAPLETON & ORS ON BEHALF OF THE BROWN RIVER PEOPLE #2
ApplicantAND: STATE OF QUEENSLAND
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 310 of 2012
BETWEEN: KEVIN ALBURY & ORS ON BEHALF OF THE KARINGBAL PEOPLE #3
ApplicantAND: STATE OF QUEENSLAND
Respondent
JUDGE:
REEVES J
DATE:
18 JULY 2012
PLACE:
BRISBANE
EX TEMPORE REASONS FOR JUDGMENT
THE CLAIM AREA AT CARNARVON GORGE
Carnarvon Gorge is a unique geographical feature located in Central Western Queensland. As with many other such sites in Australia, it is particularly significant to the Aboriginal people of the surrounding area. It is therefore not surprising to find that it is central to these native title determination applications relating, as they do, to that area of Central Western Queensland. Carnarvon Gorge is also a national park under Queensland legislation.
As it has been explained to me by Mr Creamer for the Karingbal People, the southern boundary of the Carnarvon Gorge runs along the Dawson River. Farther to the north of the Dawson River, there is a water course called Clematis Creek, which runs roughly parallel to the Dawson River. It is the area between Clematis Creek and the Dawson River that is the source of the present disruption to these proceedings (New Carnarvon Gorge Area). The New Carnarvon George Area, together with two other areas to the south east of that area, form the extension area (Extension Area).
THE FIVE PROCEEDINGS
Together these proceedings now consist of five native title determination applications concerning an area of land and waters in and around Carnarvon Gorge. All of these five applications either overlap or are co-related.
The largest claim area in size is that claimed on behalf of the Bidjara People. It includes the area of Carnarvon Gorge and a very large area to the west and south of it.
Two of the other four claims have been made on behalf of the Karingbal People. The first was filed in 2006 and the second very recently, in June 2012. The Bidjara People’s claim and the first of the two Karingbal People’s claims overlap in relation to the area of the Carnarvon Gorge and various areas to the north and east of it. This area has been separated from the balance of the Bidjara People’s claim: it is called Part A of the Bidjara People’s claim. The balance of the Bidjara People’s claim is called Part B and, except to a very limited extent, it is not affected by the applications the subject of these reasons.
The second of the Karingbal People’s claim relates to three areas, immediately to the south of Part A and overlapping with parts of Part B of the Bidjara People’s claim. The purpose of the separation of the Bidjara People’s claim into Parts A and B was so that the overlapping parts of the two claims, that is Part A, could be dealt with in the same proceeding, in accordance with s 67(1) of the Native Title Act 1993 (Cth) (the Act).
It should be noted that the National Native Title Registrar has refused to register the second of the Karingbal People’s claims on the Register of Native Title Claims under Pt 7 of the Act on various grounds, including a lack of proper authorisation for the claim under s 61.
The other two claims (of the four claims) have been made on behalf of the Brown River People. The first of those was filed in August 2011 and the second was filed at about the same time as the second of the Karingbal People’s claims, in June 2012. The first of the Brown River People’s claims is coterminous with the Karingbal People’s first claim and therefore overlaps the whole of that claim and Part A of the Bidjara People’s claim. The second of the Brown River People’s claims is coterminous with the second of the Karingbal People’s claims, albeit that the Brown River People’s claim was lodged first. It, therefore, overlaps the whole of the Karingbal People’s second claim and the same parts of Part B of the Bidjara People’s claim. As with the Karingbal People’s second claim, the National Native Title Registrar has refused to register this second claim on essentially the same grounds.
In August 2010, the hearing of the overlapping Bidjara People’s claim, that is Part A, and the Karingbal People’s claim was set down for trial, commencing October 2011. In September 2011, shortly after the first of the Brown River People’s claims was filed, those trial dates were vacated and the three, then overlapping, claims, were set down for trial to commence in August 2012. That trial was due to commence on 6 August 2012 (the Trial Proceedings) in Charleville.
THE APPLICATIONS THE SUBJECT OF THIS HEARING
I have four applications before me, the outcomes of which are closely connected. I will deal with them in the following order:
(a)the Karingbal People’s application to combine its second claim with the trial proceedings (the First Combination Application);
(b)the Brown River People’s application to combine its second claim with the trial proceedings, which includes an application to amend the claim area of the second claim, to remove an area in the north-west corner of that claim (the Second Combination Application);
(c)the Bidjara People’s application to dismiss the other four claims under s 190F(6) and/or s 84C of the Act (the Dismissal Application); and
(d)the Bidjara People’s application to vacate the trial dates for the trial proceedings to commence on 6 August 2012 (the Adjournment Application).
THE COMBINATION APPLICATIONS
I should note at the outset that the part of the Second Combination Application seeking to amend the claim area of the second claim is not opposed. I will make orders to that effect in due course. Counsel for the Karingbal People, Mr Creamer, foreshadowed a similar application by his clients. When that application is made, I will deal with it in the same manner.
On the First and Second Combination Applications, both Counsel for the Karingbal People and Counsel for the Brown River People submitted that, in May or June 2012, they discovered that the New Carnarvon Gorge Area and the other two areas comprising the Extension Area had not been included in their first claim. They also submitted that their clients had always intended to claim those areas, particularly the New Carnarvon Gorge Area, which is of particular significance to the native title claim group in each case.
When they became aware of the error, they each acted quickly to lodge a new claim. Due to the imminent trial dates, they were not able to arrange a meeting to obtain authorisation from the native title claim group but since the originally authorised claim was lodged in error, they acted on the basis of the original authorisation for the claim.
On this aspect, three observations may be interpolated. The first is that under s 64(1) of the Act, an existing claim may not be amended to include an area of land or waters that was not covered by the original application. Thus, it was not open to the Karingbal People or the Brown River People to apply to amend their claims in the trial proceedings to include the Extension Area in those claims in the way that a party may do in ordinary litigation. Their only option was to file a new claim, which claim would be subject to the registration process set out in Pt 7 of the Act.
The second observation reiterates the fact that the Court is required by s 67 of the Act to deal with the overlapping parts of two or more proceedings in the same proceeding. This section places a restraint on the otherwise far-reaching case management powers the Court has in relation to all litigation before it, including native title proceedings.
The final observation is this: the Brown River People’s claims are in a different position to the Karingbal People’s claims insofar as they relate to their first claim. Whereas the Karingbal People’s first claim has been registered on the Register of Native Title Claims under Pt 7 of the Act, the first of the Brown River People’s claims (like the second) has not been so registered. This is partly due to problems they have in establishing the requisite authorisation under s 61 of the Act. This issue is complicated by the relationship between the two claim groups concerned: the Karingbal People and the Brown River People. However, it is not necessary to go into the details of those complications for the purposes of these applications.
THE DISMISSAL APPLICATION
At the hearing of these applications, Mr Ambrose SC, Counsel for the Bidjara People, confined the s 84C application to one seeking an order, at least at this stage, under s 84D, requiring the other indigenous applicants to produce evidence that they were authorised to make the claims that they have on behalf of their respective claim groups. Insofar as it applies to the second claim lodged by each of them, the s 84C and s 84D applications largely stemmed from the fact that both were forced by the circumstances outlined above (see [13]) to seek to rely on the authorisation for the first claim to lodge the second claim.
THE ADJOURNMENT APPLICATION
The Bidjara People have submitted that if the new areas are included in the trial proceedings, they will suffer prejudice in that they have not prepared their lay and expert evidence on the basis that those areas are to be determined during that trial and that they require time to consider whether there is any other evidence that they would wish to call.
INEVITABLE ADJOURNMENT
At the outset, it is appropriate to record that my options on this adjournment application are somewhat limited by the provisions of the Act I have mentioned above (see [14]–[16]). Specifically, I had no power to prevent the Karingbal People, or the Brown River People, from filing their second applications and thereby possibly jeopardising the trial of these proceedings – a trial that has now been in preparation for almost two years. If I had that power, the case management considerations discussed by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 would have loomed large in my considerations.
It hardly needs to be said that a significant amount of public and private resources have been devoted to the pending trial of these proceedings by both the parties and the Court. In addition, some five weeks of hearing time have been set aside and, given the short period between now and when the trial is due to commence, that hearing time is likely to be lost if the trial dates are now vacated.
Notwithstanding these likely consequences, I do not see that I have any other option than to vacate the trial dates.
I consider that that course is forced upon me by the following rather unique combination of circumstances.
Firstly, I have no doubt that the failure to include the extended areas, particularly the New Carnarvon Gorge Area, in their original claims, was caused by an error. During the hearing of these applications I was told that some of the most significant sites within the Carnarvon Gorge are within the new areas claimed: they were described in the material as the “jewels in the crown”. In light of this and the significance of the Carnarvon Gorge to the Aboriginal people of the area, it is inconceivable that the claim groups would have adopted a deliberate strategy to exclude those areas. The only explanation for it can be error. It follows from this conclusion that I reject the submission made by Mr Ambrose that I should dismiss the application to combine the new areas because there was little, or no, evidence before me that it was actually brought about by mistake. While Mr Ambrose may be partly correct about the state of the evidence, I consider that the applicants can rely upon the overall effect of the matters I have just outlined to fill any void.
The second circumstance stems from the first. Because the Carnarvon Gorge is such a significant area and the New Carnarvon Gorge Area contains some of the most significant sites within it, I consider it would be quite inefficient to try to maintain the trial dates by determining the proceedings in relation to Part A without the new areas included in the claim area and then later determining the proceedings as they relate to Part B in a separate trial without the Part A area included. Among other things, that course would be likely to lead to additional, significant costs by having two trials over essentially the same area. It is also likely to give rise to potentially conflicting findings if different judges were to end up hearing the two trials. For these reasons I do not consider s 86 of the Act, which allows the Court to rely on evidence in other proceedings, will provide much assistance in resolving this conundrum.
The third circumstance is that I consider the Bidjara People have established that they may suffer prejudice if the trial were to proceed and they were not able to have the opportunity of investigating whether there is any other evidence that they would wish to call. I reach this conclusion based on the affidavits of Professor Langton and Mr Martin, the two anthropologists who the Bidjara People have obtained to assist them in the preparation of their claim. Both these anthropologists stated that they have prepared their reports on the assumption, as instructed, that the New Carnarvon Gorge Area was not included in the trial proceedings.
Although neither Professor Langton nor Mr Martin has made an unequivocal statement that they considered the Bidjara People would definitely suffer prejudice if the trial was to proceed, they pointed to a range of aspects that they wished to consider that they say may affect the evidence they would wish to give in relation to the combined Part A and New Carnarvon Gorge Area. I do not consider I can gainsay these statements on oath by these two expert witnesses.
Furthermore, I take into account that this unfortunate situation is not part of the Bidjara People’s making. It may be quite convenient for them, given their state of preparation for the trial, but I do not consider that that is a factor that I can count against them in this application.
Finally, I cannot see any merit in proceeding with the trial on the basis that the Bidjara People will be able to adduce any further evidence in relation to the Extension Area at a later stage of the trial. Their counsel cannot be expected to cross-examine the witnesses that are called if the trial is to proceed through its first stage based on the additional evidence that they will not have by that time. That being so, that approach is likely to result in an extended trial period; two stages of the trial; most likely two visits to the remote areas concerned to take evidence – which involves not an inconsiderable logistical exercise for the Court and the parties; let alone the expense involved for everyone. In any event, that approach would not be likely to achieve any earlier determination of the proceedings.
For these reasons, I propose to vacate the trial dates, to make the combination orders sought, to make the order under s 84D sought by the Bidjara People and to make whatever consequential orders are necessary, including a new set of trial programming orders aimed at a trial of these proceedings commencing in early 2013.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 31 August 2012
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