Wyman on behalf of the Bidjara People v State of Queensland [2012] FCA 454

FEDERAL COURT OF AUSTRALIA

Wyman on behalf of the Bidjara People v State of Queensland [2012] FCA 454 Citation: Wyman on behalf of the Bidjara People v State of Queensland [2012] FCA 454

Parties: BRENDAN WYMAN & ORS ON BEHALF OF THE BIDJARA PEOPLE v STATE OF QUEENSLAND

File number: QUD 216 of 2008

Judge: REEVES J

Date of reasons: 1 May 2012

Date of hearing: 23 March and 3 April 2012

Place: Alice Springs (Heard in Brisbane)

Division: general DIVISioN

Category: No Catchwords

Number of paragraphs: 17

Counsel for the Applicant: L Stephens

Solicitor for the Applicant: Trevor Hauff Lawyers

Counsel for the First Respondent: R Webb QC

Solicitors for the First Respondent: Crown Law

Counsel for the Second Respondent: J Creamer

Solicitors for the Second Respondent: Redmond & Redmond

Counsel for the Third Respondent: J Waters and T Jowett

Solicitors for the Third Respondent Rob Powrie Legal Consultant

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

Applicant

AND: STATE OF QUEENSLAND

Respondent

JUDGE: REEVES J DATE: 1 May 2012 PLACE: Alice Springs (Heard in BRISBANe)

REASONS FOR JUDGMENT 1 Mr Brendan Wyman and others on behalf of the Bidjara People have filed an application seeking, among other orders, an order in the following terms: Dismissal of Charles Stapleton & Ors on behalf of the Brown River People as a respondent (a) for want of standing and/or (b) being a one family claim with no society or (c) pursuant to s61A of the Native Title Act 1993 ("Act"); 2 On 3 April 2012, I ordered that this part of the Bidjara People's application be dismissed. Shortly before that dismissal, Mr Stephens of counsel, for the Bidjara People, told the Court that the application was "a knee jerk reaction" to an earlier application filed by the Brown River People seeking the dismissal of the Bidjara People's claim. Then, immediately after that dismissal, Mr Stephens told the Court he had instructions to withdraw the application. Despite both of these statements, Mr Hauff, the solicitor for the Bidjara People, has since requested that written reasons be provided for the dismissal of this part of the application. 3 These reasons are provided in response to that request. 4 Section 67 of the Native Title Act 1993 (Cth) (the Act) is central to my reasons for dismissing this part of the Bidjara People's application. It provides as follows: (1) If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. (2) Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings. 5 This section is central because these proceedings cover the same large area of land and waters in south west Queensland as two other native title determination applications. In chronological order, the three native title determination applications involved were lodged as follows: (a) QUD23/06 Kevin Albury and Ors on behalf of the Karingbal People #2 v State of Queensland and Ors filed 20 January 2006; and (b) QUD216/08 Brendan Wyman and Ors on behalf of the Bidjara People v State of Queensland and Ors filed 23 July 2008; (c) QUD245/11 Charles Stapleton and Ors on behalf of the Brown River People v State of Queensland and Ors filed 29 August 2011. 6 The claim groups involved in these three overlapping proceedings have become referred to as: the Karingbal People, the Bidjara People and the Brown River People respectively. 7 On 5 August 2010, about a year before the Brown River People's application was lodged, I made orders that the overlapping parts of the applications in these proceedings and the Karingbal People's proceedings were to be heard together. At the same time, I set the two overlapping proceedings down for trial to commence in October 2011. The specific orders of 5 August 2010 that effected this outcome in these proceedings were as follows: 1. The Applicant on behalf of the Karingbal People #2 in application QUD23/2006 be joined as a respondent. 2. Pursuant to Order 78 rule 6(5) of the Federal Court Rules: (a) application QUD216/2008 ("the Bidjara Application") be divided into two parts, to be called "Bidjara Part A", consisting of that portion of the Bidjara Application which overlaps with application QUD23/2006 ("Karingbal #2"), and "Bidjara Part B" consisting of the remainder of the Bidjara Application; and (b) Bidjara Part A be considered separately and prior to Bidjara Part B. 3. Pursuant to section 67(2) of the Native Title Act 1993 (Cth) and order 29 Rule 5 of the Federal Court Rules, Bidjara Part A and Karingbal #2 be heard together in a separate proceeding ("the separate proceeding"). 8 Corresponding orders were made in the Karingbal People's proceedings. 9 In early September 2011, soon after the Brown River People lodged their claim, I held a directions hearing in relation to the three proceedings. At that directions hearing, I vacated the October 2011 trial dates above. I also vacated Order 3 of the orders made on 5 August 2010 (see [7] above) and, in its place, made the following orders: 1. Pursuant to section 67(2) of the Native Title Act 1993 (Cth) Brown River Part A, Bidjara Part A and Karingbal #2 be heard together in a separate proceeding ("the separate proceeding"). 2. The Applicant on behalf of the Brown River People in application QUD245/2011 be joined as a respondent. 10 Again, corresponding orders were made in the Karingbal People's proceedings and the Brown River People's proceedings. 11 In addition, in the Brown River People's proceedings, orders were made in similar terms to Order 2 of the 5 August 2010 orders (see at [7] above), albeit by that time the apposite rule was Rule 30.11 of the Federal Court Rules 2011. Thereafter, I set down the three overlapping proceedings (referred to in the order above as "the separate proceeding") for trial in August 2012 and made a detailed set of trial programming orders in each of the three proceedings. 12 Section 67 of the Act was the catalyst for this series of orders (above) in the three proceedings. In particular, it will be noted that Order 3 of the 5 August 2010 orders (at [7] above) and Order 1 of the September 2011 orders (at [9] above) both specifically rely upon s 67(2) of the Act. Thus, the end result of this series of orders was that the overlapping area covered by the three proceedings was to be dealt with in a separate proceeding in compliance with s 67 of the Act. 13 A further consequence of this series of orders was that the Brown River People were given standing as a respondent party in the Bidjara People's proceedings (see Order 2 at [9] above), and vice versa in the Brown River People's proceedings. 14 Mr Stephens appeared as counsel for the Bidjara People at the directions hearing in September 2011 when all of these orders were made. While he made submissions about some other aspects of the trial programming orders, he did not make any submissions in relation to the orders mentioned above. Given the statutory imperative contained in s 67 of the Act, that is entirely unsurprising. 15 Among other things, this history demonstrates that the order joining the Brown River People as a respondent in these proceedings is a final order: see the discussion in the Full Court decision of Abigroup Limited v Abignano (1992) 39 FCR 74 at 88. It has remained in place and governed the conduct of these proceedings for the past six months or more. For example, as a respondent party in these proceedings, the Brown River People have filed a response to the Bidjara People's points of claim. It follows that, if the Bidjara People now wish to challenge that order, their only option is to seek leave to appeal it. I do not consider this is a situation where they can seek to make that challenge by simply filing a further interlocutory application, as they have. 16 These reasons dispose of this application. However, it is convenient to add these observations about the allegations in paras (b) and (c) of the application (see at [1] above). These allegations appear to have their genesis in the decision of the Native Title Registrar refusing to register the application of the Brown River People on the Register of Native Title Claims under Pt 7 of the Act. That decision was made on 7 October 2011. If this assumption is correct, it is appropriate to observe this: s 67 of the Act does not appear to draw any distinction between native title determination applications that are registered under that Part, and those that are not so registered. This may be thought to be a strange outcome and one that may be open to abuse, but that is what the words of the section provide. It follows that, subject to the qualification expressed below, the failure of the Brown River People to gain registration of their native title determination application under Pt 7 of the Act does not alter the obligation the Court has under s 67 of the Act to deal with that unregistered application, along with the two registered applications (the Bidjara People's application and the Karingbal People's application) in the same proceedings. However, that obligation may cease if the Brown River People's unregistered application were to be dismissed under, for example, s 190F(6) of the Act. No such application has been made. And, if it were to be made, it would have to be made in the Brown River People's proceedings, not these proceedings. That is so because these three proceedings remain separate proceedings. They have not been consolidated under Rule 30.11 of the Federal Court Rules 2011. Indeed, this was a matter that was expressly raised and made clear at the September 2011 directions hearing. 17 For these reasons, I dismissed this part of the Bidjara People's application. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.