Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255

FEDERAL COURT OF AUSTRALIA

Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 Citation: Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255

Parties: LESLIE WERIBONE & ORS ON BEHALF OF THE MANDANDANJI PEOPLE (ACCORDING TO THE SCHEDULE) v STATE OF QUEENSLAND & ORS (ACCORDING TO THE SCHEDULE)

File number: QUD 366 of 2008

Judge: RARES J

Date of judgment: 25 March 2013

Corrigendum: 8 May 2013

Catchwords: NATIVE TITLE – competing applications for orders to be made replacement applicant under s 66B Native Title Act 1993 (Cth) – procedural requirements for convening meetings of native title claim group under s 251B for the purposes of authorising applicant – whether notice of business to be conducted at first meeting adequate – where first meeting specifically convened to add a particular further apical ancestor but no specific notice given of that business – whether second meeting convened procedurally flawed because of defects in the authorisation created at first meeting, its advertising, remoteness place of meeting from large numbers of constituency who were not offered transport or accommodation assistance to attend and differing attendance at times of critical votes –whether third meeting of native title claim group as constituted before first meeting valid – whether constituency misled by apparent (but invalid) authorisation of new description of claim group at first and second meetings INJUNCTIONS – native title – interlocutory injunction – no currently functional applicant and competing replacement applicants where bona fide anthropological evidentiary dispute as to proper description of native title claim group – where assets, rights and interests held by non-functional applicant under indigenous land use agreements and agreements made under s 31 of Native Title Act 1993 and under State legislation – where status of applicant under Native Title Act 1993 created basis for negotiation of such agreements – where assets, rights and interests in danger because of lack of proper control and accountability to whomever be found to be native title claim group – whether Court can order interlocutory injunction in matter under Native Title Act 1993 of own motion INJUNCTIONS – undertaking as to damages – whether necessary where no party able to apply or offer undertaking – public interest in protection of assets, rights and interests of persons who will be found at trial to be entitled to native title determination – where any persons affected had right to apply for variation of injunctions – where person holding benefit of assets, rights and interests derived that position from person's status as applicant for native title under Native Title Act 1993 – whether such applicant owes fiduciary duties to native title claim group found to be entitled at trial – where status quo needed to be protected awaiting the determination of the native title claim group – whether applicant owes fiduciary duties – where several companies created by applicant holding and using money derived from indigenous land use agreements and s 31 agreements – where continued uncertainty as to the claim group – whether an interlocutory injunction can be ordered without requiring an undertaking as to damages – where no party sought an undertaking as to damages Held: (1) notices of meetings under s 251B of Native Title Act 1993 must give fair notice of the particular business to be considered at the meeting; (2) notice must be clearly, simply and directly expressed so native title group member may judge for themselves whether to attend meeting and vote – notice of first meeting invalid and that invalidated both other meetings; (3) interests of justice and public interest justified the Court making interlocutory orders to secure and protect any moneys and entitlements obtained by use of the status of an applicant under Native Title Act 1993 to preserve the status quo for the benefit of native title claim group ultimately entitled, provided third parties affected had right to apply to vary or vacate orders; (4) undertaking as to damages not required having regard to special circumstances in these proceedings