FEDERAL COURT OF AUSTRALIA Kudjala People v State of Queensland [2006] FCA 1564 KUDJALA PEOPLE v STATE OF QUEENSLAND, ERGON ENERGY CORPORATION LIMITED, QUEENSLAND LAPIDARY AND ALLIED CRAFT CLUBS ASSOCIATION, PM & JL COSTELLO AND STUART PASTORAL PTY LTD QUD 6001 OF 2000 DOWSETT J 25 SEPTEMBER 2006 TOWNSVILLE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 6001 OF 2000 BETWEEN: KUDJALA PEOPLE Applicant AND: STATE OF QUEENSLAND First Respondent ERGON ENERGY CORPORATION LIMITED Second Respondent QUEENSLAND LAPIDARY AND ALLIED CRAFT CLUBS ASSOCIATION Third Respondent PM & JL COSTELLO Fourth Respondent STUART PASTORAL PTY LTD Fifth Respondent JUDGE: DOWSETT J DATE: 25 SEPTEMBER 2006 PLACE: TOWNSVILLE REASONS FOR JUDGMENT 1 On 19 June 2006 I made certain orders concerning the conduct of this matter and, in particular, concerning evidence relating to the identification of the claim group. The claim which existed prior to 18 September 2006 has been, since its inception, bedevilled by the fact that the description of the claim group has been: 'The members of the Inland Land Council Aboriginal Corporation (ILC) is the native title claim group for this application, except that the people identified in attachment A7 are excluded from the Native Title claim group. A membership list for the ILC is kept at the offices of the Inland Land Council at 24-26 Hodgkinson Street, Charters Towers.' 2 At attachment A7 there is an extended list of apical ancestors of persons who are excluded from the claim group. The Inland Land Council, as I understand it, no longer exists but, at the relevant time, membership was open to 'adult Aboriginal traditional owners'. A traditional owner was said to be a person able to establish genealogical connection to the Kudjala, Yirandali, Wanamara or Mitjumba People, or persons able to trace their genealogy from a number of apical ancestors. 3 To introduce membership of the Land Council into the description of the claim group was, almost certainly, fatal to the validity of the claim. The requirement for membership meant that any person eligible for membership who had not joined was also disqualified from being a member of the claim group, even if otherwise qualified for such membership. It seems inevitable that some people must have fallen into that category. Secondly, the description excluded children from the claim group. They were not eligible for membership of the Land Council. Thirdly, it seems that continued membership of the Land Council was essential to continued membership of the claim group. I infer this from the reference to the keeping of the membership list. This implies an expectation that membership of the claim group will change. 4 The difficulties with this description have been raised with the parties at directions hearings on numerous occasions. The order made on 19 June 2006 was simply the final step. The intention of the order was to compel the convening of a meeting of members of the claim group as it was constituted under the description contained in the application at that time (as far as possible) and a meeting of a proposed new claim group, to be identified in a rather more conventional way, probably by reference to apical ancestors. The order required the filing of affidavits by 18 September 2006, deposing to decisions having been made at properly convened meetings of both groups, which resolutions would have authorised the continued conduct of appropriately amended proceedings. 5 Because of the history of the matter, the order was in the form of a self-executing order. An amended application in accordance with decisions taken at the meetings was to be filed on or before 18 September 2006. In the event of failure to comply with that order the application was to stand dismissed. Affidavits were also to be filed by that date. Similarly, in the event of failure to do so, the matter was to stand dismissed. 6 Affidavits were filed in purported compliance with the order, but the amended application was not filed until 19 September 2006. Such a short delay would normally invite a successful application for an extension of time in which to comply. However one would expect an explanation of the failure to comply with the terms of the order, particularly in view of the history of the matter. No satisfactory explanation has been forthcoming. In those circumstances, it has been appropriate to look carefully at the application and at the proposed amendments. Such examination has raised significant concerns about the appropriateness of allowing the proposed new application to proceed as an amendment to the existing application. 7 Firstly, notwithstanding the very substantial proposed amendments, Schedule S offers no real details of them in the way required by the prescribed form of application. No doubt that matter could be remedied were I otherwise minded to allow the proposed amendments. I have been told that there are other difficulties concerning maps and affidavits which have not been properly sworn. All of those problems could, no doubt, be remedied. 8 Of rather more concern is the fact that the material does not demonstrate the extent to which the original claim group overlaps, or is included within, the proposed new claim group. I have been told that there is some similarity but, in view of the difficulties inherent in identifying the members of the original claim group, it is difficult to be sure that that is the case. A second difficulty concerns the nature of the claim. In the original application, as far as I can see, the word "Kudjala" is not used anywhere. The proposed amended application claims native title in accordance with Kudjala law and custom. It is not clear to me that this was the basis of the original application. These matters suggest that the claim is virtually a new claim. It may be better to allow the claim group to proceed with a new application than to persevere with an amendment to an application which already has an enormous amount of procedural baggage. 9 No doubt there are ongoing negotiating rights which may be more conveniently maintained by amendment. It is suggested that additional resources will be consumed if the amendment is not allowed. Whilst those considerations are relevant, it seems to me that it is problematic as to whether the original application should be allowed to continue in any event. It is very close to an abuse of process, given the difficulties to which I have referred and the total failure to sort them out prior to this time. 10 However there is another matter which seems to me to be decisive against allowing the application to continue as an amended application. It emerges from the affidavits which have been relied upon, particularly that of Mr Santo, although the relevant paragraph also appears in other affidavits. 11 By way of explanation I should point out that the two claim groups have adopted different decision-making procedures pursuant to s 251B of the Act. The original claim group adopted the procedures prescribed by the constitution of the Land Council, although I am not sure what that means. The new claim group has adopted majority vote as its decision-making mechanism. 12 In par 7 of Mr Santo's affidavit, he says: 'A meeting of the relevant members of the Inland Land Council Aboriginal Corporation was held on 11 September 2002 and those members, being the native title claim group as described in the currently registered application authorised that the claim group description be amended. The manner in which that change was authorised was in accordance with the process that agreed and adopted for decisions of that kind and was in accordance with the rules of the Inland Land Council Aboriginal Corporation.' 13 As I have said, the intention underlying the order of 19 June 2006 was that the existing claim group and the proposed claim group each have meetings to authorise various things, including the reconstitution or redescription of the claim group. The applicants chose not to follow that course but, rather relied on an earlier meeting, almost four years prior to the order made on 19 June. It apparently was thought that a resolution then adopted was sufficient authorization for the proposed amendment, or at least that is what I am told. 14 Paragraph 7 says nothing about the nature of the amendment which was adopted at that time. Nothing else in the material indicates the nature of the proposed amendment. It is asserted that the membership of the proposed claim group is the same as that of the original claim group, but there is no evidence to that effect. Given the difficulties in identifying the original membership of the claim group, one wonders whether it would ever be possible to do so. 15 For that reason, it would be inappropriate, indeed impossible, to allow amendment of the application. The description of the claim group must first be changed by a meeting of the claim group as constituted prior to the amendment. The claim as amended must then be authorized by the new claim group. 16 No good point would be served by extending time to comply with the order of 19 June 2006. The original application stands dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 28 November 2006 Counsel for the Applicant: Ms K McKenzie Solicitor for the First Respondent: Crown Law Solicitor for the Second and Third Respondents: MacDonnells Solicitors Solicitor for the Fourth and Fifth Respondents: Thynne and Macartney Lawyers Date of Hearing: 25 September 2006 Date of Judgment: 25 September 2006