FEDERAL COURT OF AUSTRALIA In re Yoren [2004] FCA 916 Native Title – application to revise Determination of native title – several prescribed bodies corporate – whether, for the purposes of s 61(1)(b) of the Act, any such body may apply. Native Title Act 1993 (Cth) s 61(1)(b) IN THE MATTER OF NED YOREN, HENRY DEERAL, PAULINE MCLEAN, ELAINE BARU, LOUIS CHARLIE AND JOHNNY DEERAL (ON BEHALF OF THE DINGAAL CLAN INCORPORATED AS WALMBAAR ABORIGINAL CORPORATION) Q 109 OF 2004 JUDGE: BEAUMONT J. PLACE: CAIRNS DATE: 13 JULY 2004 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 109 OF 2004 IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 13(1)(B) OF THE NATIVE TITLE ACT (CTH) 1993 IN ORDER TO VARY THE HOPEVALE NATIVE TITLE DETERMINATION OF THIS COURT DATED 8 DECEMBER 1997 tHE APPLICATION OF NED YOREN, HENRY DEERAL, PAULINE MCLEAN, ELAINE BARU, LOUIS CHARLIE AND JOHNNY DEERAL (ON BEHALF OF THE DINGAAL CLAN INCORPORATED AS WALMBAAR ABORIGINAL CORPORATION) APPLICANTS JUDGE: BEAUMONT J. DATE OF ORDER: 13 JULY 2004 WHERE MADE: CAIRNS The COURT ORDERS THAT: 1. The Form 3 application filed on 5 July 2004 be struck out. 2. There be no order for costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 109 OF 2004 IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 13(1)(B) OF THE NATIVE TITLE ACT (CTH) 1993 IN ORDER TO VARY THE HOPEVALE NATIVE TITLE DETERMINATION OF THIS COURT DATED 8 DECEMBER 1997 tHE APPLICATION OF NED YOREN, HENRY DEERAL, PAULINE MCLEAN, ELAINE BARU, LOUIS CHARLIE AND JOHNNY DEERAL (ON BEHALF OF THE DINGAAL CLAN INCORPORATED AS WALMBAAR ABORIGINAL CORPORATION) APPLICANTS JUDGE: BEAUMONT J. DATE: 13 JULy 2004 PLACE: CAIRNS REASONS FOR JUDGMENT (ON STRIKE OUT APPLICATION) BEAUMONT J: INTRODUCTION 1 Section 13(1)(b) of the Native Title Act 1993 (Cth) ('the Act') provides, inter alia, that an application may be made to this Court under Part 3 to revoke or vary an approved determination of native title (the Hopevale Native Title Determination referred to in Erica Deeral v Gordon Charlie (8 December 1997, unreported, Beaumont J) was so approved) on the grounds set out in s 13(5). By s 13(5), those grounds are: (a) that events have taken place since the determination that have caused it no longer to be correct; or (b) that the interests of justice require the variation or revocation. 2 Section 61 is located within Part 3. Section 61(1) sets out the applications that may be made and the persons who may make them. In the case of revision, the parties specified are 'the registered native title body corporate' or the Commonwealth, State or Territory Ministers or the Native Title Registrar. 3 On 5 July 2004, the applicants filed an application in Form 3 of the Native Title Regulations, referring to s 61(5)(c) of the Act. Under that provision, an application must contain such information in relation to the matters sought to be determined as is prescribed. 4 The application includes the following particulars: 'TAKE NOTICE that the Applicants are applying to the Court under 61(1) of the … Act …, for variation of an approved determination of native title, pursuant to Section 13(1)(b) of the … Act … on the grounds set out in this application. A. DETAILS OF APPLICATION 1. The applicant applies to the Court under 61(1) of the … Act …, for variation of an approved determination of native title, pursuant to Section 13(1)(b) of the … Act … . 2. The applicants are entitled to make this application as … common law Native Title holders and are authorised on behalf of the Dingaal Clan incorporated as Walmbaar Aboriginal Corporation pursuant to the Aboriginal Councils and Associations Act (Cth) 1976 by a process of authorisation that; (a) was given by a process of decision-making made by all the persons in the Dingaal Clan, under the traditional laws and customs of the Dingaal Clan; (b) was given by a process of decision-making that complied with the traditional laws and customs of the Dingaal Clan; and (c) permits the applicants to deal with matters arising in relation to this Application pursuant to Section 13(1)(b) of the …Act …, to vary the Hopevale Native Title determination so that royalties and compensation can be paid to the Dingaal Clan.' 5 A preliminary point has been taken by the parties claiming to have an interest in the application ('the respondents'). The point, seeking the striking out of the application, arises in the following context: 6 Applicants in the subject Determination (The Hopevale Native Title Determination, made without opposition upon agreement of all concerned) were then nominated as follows: Erica Deeral (on behalf of herself and the Gamaay Peoples), Phillip Baru (on behalf of himself and the Dingaal Peoples), Bertie Gordon (on behalf of himself and the Nugal Peoples), Herman Bambie (on behalf of himself and the Thuubi Peoples), Brian Cobus (on behalf of himself and the Nguurruumungu Peoples), Wayne Coats (on behalf of himself and the Dharrpa Peoples), Pat Wallace (on behalf of himself and the Binhthi Peoples), Eddie Deemal (on behalf of himself and the Thiithaarr Peoples), Hector Michael (on behalf of himself and the Thanil Peoples), George Rosendale (on behalf of himself and Nguymbaarr Nguymbaarr Peoples), Terrence Jacko (on behalf of himself and the Ngaatha Peoples), Martin James (on behalf of himself and the Gulaal Peoples) jointly, and in their capacities as representatives of their respective clans; and Bertie Gordon, Herman Bambie, Pat Wallace, Eddie Deemal and Terrence Jacko in their respective capacities jointly on behalf of the Buurnga Peoples. 7 In making the Hopevale Native Title Determination, the Court then noted the following: 'F. The terms of the proposed determinations involve the making of a determination that native title exists in relation to certain land and waters. G. That the Applicants, as representatives of the common law holders of the respective clans which they represent, have not made a nomination pursuant to sub-section 56(2) of the … Act … in regard to the holding of native title on trust. H. The parties have requested that the Court pursuant, to sub-section 56(2)(c) of the … Act …, make a determination that the native title rights and interests are held by the common law holders. I. That Herman Bambie, as a representative of the common law holders of the Thuubi clan, has made a nomination pursuant to sub-section 57(2)(a) of the … Act … that the Dhubbiwarra Aboriginal Corporation, a prescribed body corporate, perform the functions mentioned in sub-section 57(3) of the … Act … . J. That the common law holders of the Gamaay, Nugal, Nguurruumungu, Dharrpa, Binhthi, Thiithaarr, Thanil, Nguymbaarr Nguymbaarr, Ngaatha, Gulaal and Buurnga clans are in the process of seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth), the Hopevale Congress Aboriginal Corporation to be a prescribed body corporate and perform the functions mentioned in sub-section 57(3) of the … Act … . K. That the common law holders of the Dingaal clan are in the process of seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth), the Walmbaar Aboriginal Corporation to be a prescribed body corporate and perform the functions mentioned in sub-section 57(3) of the … Act … . L. That pursuant to clauses 17 and 18 of the Schedule to the Deed, upon the making of this determination and the registration of the Hopevale Congress Aboriginal Corporation, the Dhubbiwarra Aboriginal Corporation and the Walmbaar Aboriginal Corporation (or such other corporations as prescribed bodies corporate) on the National Native Title Register pursuant to sub-section 193(2)(d) of the … Act …, the Applicants will direct their respective registered native title bodies corporate to enter into the section 21 agreements contained in Annexures 4, 5, 6 and 7 of the Schedule to the Deed. The Court, being satisfied that a determination in the terms sought by the parties would be within the power of the Court and, it appearing to the Court appropriate to do so, the Court, pursuant to sub-section 87(2) of the … Act …, and by the consent of the parties, makes the following determination, namely:- 1. That the native title rights and interests exist in relation to the land and waters of the Hopevale Deed of Grant in Trust to the high water mark, being the land described in clause 1 of the Schedule to the Deed, in accordance with and subject to the terms of the Schedule to the Deed (which is Annexure 1 to this determination), and the QCFO Deed (which is Annexure 2 to this determination). 2. … 3. The native title rights and interests which exist in accordance with the Deed and the QCFO Deed are held by the common law holders of the following clan groups for their respective clan estates:- Gamaay clan; Dingaal clan; Nugal clan; Thuubi clan; Nguurruumungu clan; Dharrpa clan; Binhthi clan; Thiithaarr clan; Thanil clan; Nguymbaarr Nguymbaarr clan; Ngaatha clan; Buurnga clan; and Gulaal clan ….' 8 As has been seen, s 61(1)(b) speaks of the registered native title body corporate. By s 253 of the Act, 'registered native title body corporate' means, inter alia, a prescribed body corporate registered on the National Native Title Register under s 193(2)(d)(iii). By that last provision, the Register is to contain, in relation to an approved determination, details 'of any prescribed body corporate that holds the native title rights and interest concerned on trust or that is determined under [s] 57 …'. 9 Provision is made by s 57 of the Act for the determination of a prescribed body corporate and for its functions. Where, as here, there is no trusteeship, s 57(3) provides that, after becoming a registered native title body corporate, the prescribed body corporate must perform the functions therein prescribed. 10 In the present case, the information included in the National Native Title Register includes the following: 'Prescribed Body Corporate: 1) Dhubbiwarra Aboriginal Corporation 2) Hope Vale Congress Aboriginal Corporation 3) Walmbaar Aboriginal Corporation … Common Law Holders of Native Title: Gamaay clan; Dingaal clan; Nugal clan; Thuubi clan; Nguurruumungu clan; Dharrpa clan; Binhthi clan; Thiithaarr clan; Thanil clan; Nguymbaarr Nguymbaarr clan; Ngaatha clan; Buurnga clan; and Gulaal clan.' THE STRIKE OUT APPLICATION 11 Section 84C(1) of the Act provides that if an application does not comply with, inter alia, s 61 ('which deals with the basic requirements for applications'), a party to the proceedings may at any time apply to this Court to strike out the application. 12 The preliminary point, which is invoked by the respondents (together with other, independent, considerations not dealt with here) as a basis for inviting the Court to strike out the application, is a question of statutory interpretation, and one, I think, of impression only; that is to say, the question is where, as here, there are several prescribed bodies corporate, can only one of them apply under s 61(1)(b) for revision? 13 In my opinion, having regard to the evident purpose of s 61(1)(b) in limiting the scope of applicants who can apply at all, as a matter of construction, the word 'the' in the expression 'the registered native title body corporate' does not mean 'any', but must include the plural, that is to say, 'all' of such bodies corporate if revision is to be applied for. 14 The language of s 61(1)(b) may, I think, be usefully contrasted with the terms of s 193(2)(d)(iii) which (as mentioned) speak of 'any prescribed body corporate'. 15 Where, as here, several bodies corporate hold the native title, it is plain that the evident object sought to be achieved by s 61(1)(b) in not permitting any of them to move, on a free-standing basis, for a revision, is the fact that all of those bodies initially joined in, and together became, parties to the approved determination. On the face of it, it would be wrong for any one of them to proceed, independently, to apply to revise their joint determination, unless of course all of them later agree to join in the claim for revision. This accords with general (and universal) practice (see e.g. O 6 r 8 of the Federal Court Rules), that a person shall not be added as an applicant without consent. 16 On behalf of the applicants, reference was made to the decision of Nicholson J in Daniel v State of Western Australia [2004] FCA 849. However, his Honour was not at all concerned with the present question of statutory construction. 17 In my opinion, the format of the present application plainly fails to comply with s 61(1)(b), and there is no indication that the other bodies corporate wish to apply for a revision. ORDERS 18 Accordingly, pursuant to s 84C of the Act, I order that the application be struck out. 19 The respondents to the application have sought costs. However, having regard to the provisions of s 85A of the Act, and to the circumstance that this was a novel situation, it is not, in my view, appropriate to order costs. I certify that this and the preceding nineteen (19) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont Associate: Dated: 13 July 2004 Counsel for the Applicants: Mr A Wrenn Solicitor for the Applicants: D Knaggs Counsel for the State of Queensland: Mr D O'Brien Solicitor for the State of Queensland: The Crown Solicitor Solicitor for Cape Flattery Silica Mines Pty Ltd: Gore & Associates Counsel for the Cape York Land Council: Ms S Phillips Solicitor for the Cape York Land Council: Cape York Land Council Solicitor for the Hopevale Aboriginal Council: Bottoms English Date of Hearing: 12 July 2004 Date of Judgment: 13 July 2004