Van Hemmen on behalf of The Kabi Kabi People #3 v State of Queensland [2007] FCA 1185

FEDERAL COURT OF AUSTRALIA

Van Hemmen on behalf of The Kabi Kabi People #3 v State of Queensland [2007] FCA 1185

NATIVE TITLE – application seeking dismissal of native title determination application pursuant to s 84C Native Title Act 1993 (Cth) – whether application authorised by all the persons holding native title rights and interests – substantial overlap with another claim – eleven of twelve named apical ancestors named in both claims – whether majority vote is a method of decision making in accordance with traditional laws and customs of the Kabi Kabi people – whether all relevant Kabi Kabi people consulted – whether applicant should be given further time to take advantage of an "administrative window of opportunity" presented by the Native Title Tribunal to amend application – application also brought pursuant to Order 20 rule 2 Federal Court Rules NATIVE TITLE – costs – application by non-party for costs of preparing affidavit material in respect of notice of motion subsequently discontinued – section 85A Native Title Act 1993 (Cth) – section 43 Federal Court of Australia Act 1976 (Cth) Held: The native title determination application is dismissed. No evidence that native title applicant was authorised to make the application by all persons holding native title rights and interests. No identification of the "Elders". Evidence that relevant persons were not consulted and did not authorise claim. No clear evidence of decision-making process which conforms with traditional laws and customs of the Kabi Kabi people or which has been agreed and which would meet the requirements of the Act. Allowing the applicant further time would not address key flaws in the application. No orders as to costs. No special or exceptional factor which would justify the making of a costs order in this case.