FEDERAL COURT OF AUSTRALIA Hill on behalf of the Yirendali People Core Country Claim v State of Queensland (No 2) [2015] FCA 538 Citation: Hill on behalf of the Yirendali People Core Country Claim v State of Queensland (No 2) [2015] FCA 538 Parties: JAMES HILL & ORS ON BEHALF OF THE YIRENDALI PEOPLE CORE COUNTRY CLAIM v STATE OF QUEENSLAND & ORS File number: QUD 495 of 2006 Judge: LOGAN J Date of judgment: 15 May 2015 Catchwords: NATIVE TITLE – practice and procedure – whether trial of separate question going to existence of native title in claim area should be vacated in light of statement by applicant that it would not be calling any evidence – where applicant had been afforded procedural fairness in terms of a full opportunity to make its case – whether substantive native title application should be dismissed by interlocutory application by respondents – where interests of respondents disparate in nature and there is a need to allow each respondent time to consider its position and seek consequential orders – trial vacated and matter adjourned for further directions and hearing of any consequential application arising from applicant's statement Legislation: Native Title Act 1993 (Cth) s 87 Cases cited: Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300 Date of hearing: 15 May 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Solicitor for the Applicant: Mr P Gore as Town Agent for Dillon Bowers Lawyers Counsel for the State of Queensland: Mr K Barlow QC with Ms E Longbottom Solicitor for the State of Queensland: Crown Law Solicitor for the Commonwealth of Australia: Australian Government Solicitor Solicitor for the Flinders Shire Council, Richmond Shire Council and Charters Towers Regional Council: Gilkerson Legal Solicitor for the Various Pastoralists: Thynne & Macartney Solicitor for the Glencore Coal Queensland Pty Limited (formerly Xstrata Coal Queensland Pty Ltd): Allens Solicitor for the Telstra Corporation Limited: Herbert Smith Freehills Table of Corrections 2 June 2015 In order 2, "trail" has been replaced with "trial". 2 June 2015 In order 4, "field" has been replaced with "filed". IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 495 of 2006 BETWEEN: JAMES HILL & ORS ON BEHALF OF THE YIRENDALI PEOPLE CORE COUNTRY CLAIM Applicant AND: STATE OF QUEENSLAND & ORS Respondent JUDGE: LOGAN J DATE OF ORDER: 15 MAY 2015 WHERE MADE: BRISBANE THE COURT ORDERS THAT: Having regard to the statement made by the applicant in open Court today that it does not propose to adduce evidence at the hearing of the separate question as set out in paragraph 1 of the orders made on 13 June 2014 (applicant's statement): 1. The trial of the separate question which is due to commence on 29 June 2015 is vacated. 2. Directions made regarding the trial of the separate question in respect of which the time for compliance has not yet arisen are vacated. 3. Any consequential application by any party arising from the applicant's statement is to be filed and served, together with any materials and submissions, on or before 15 June 2015 and returned for hearing on 29 June 2015 at 10.15am. 4. Any affidavit in reply, and submissions, are to be filed and served on or before 24 June 2015. 5. The matter is adjourned for directions and hearing of any applications filed pursuant to order 3 above to 29 June 2015 at 10.15am. The Court also reserves 30 June 2015 for further hearing of any consequential application as required. 6. Liberty to apply. 7. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 495 of 2006 BETWEEN: JAMES HILL & ORS ON BEHALF OF THE YIRENDALI PEOPLE CORE COUNTRY CLAIM Applicant AND: STATE OF QUEENSLAND & ORS Respondent JUDGE: LOGAN J DATE: 15 MAY 2015 PLACE: BRISBANE REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 This native title application is presently the subject of an order made on 13 June 2014 for the determination of a separate question set out in paragraph 1 of that order, namely: Separate question 1. Pursuant to rule 30.01 Federal Court Rules 2011, the following questions be decided separately from and before any other questions in the proceeding: "But for any question of extinguishment of native title: (a) does native title exist in relation to any and what land and waters of the claim area? (b) in relation to that part of the claim area where the answer to (a) above is in the affirmative: (i) who are the persons, or each group of persons, holding the common or group rights comprising the native title? (ii) what is the nature and extent of the native title rights and interests?" 2 The subsequent case management by me and by the Registrar culminated on 13 May 2015 in my varying order 27 of those made on 13 June 2014 so as to require the identification of evidence for which that order provides to occur today before me rather than before the Deputy Registrar. Upon the matter being called on for that purpose, Mr Gore, who appeared for the applicant as town agent for Dillon Bowers Solicitors, signified that the applicant would not be calling any evidence at the trial of the separate question fixed to commence on 29 June 2015. 3 As my reasons for judgment refusing leave to the applicant to discontinue disclose (see Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300), this matter has a very long history, particularly if one has regard to earlier manifestations of what is, in effect, the same native title claim. Further, the applicant has had, having regard to the order made on 13 June 2014, almost a year's notice to get to the point presently disclosed in open court today. And that against the background of a trial fixed to occur a little over 12 months after the order of 13 June 2014 was made. In other words, insofar as any exercise of the judicial power of the Commonwealth necessarily entails an affording to each interested party of procedural fairness, the applicant, in my view, has been afforded a full opportunity to be heard in respect of the separate question. 4 Having had that full opportunity and with the benefit of legal advice, the applicant has made a very particular statement in open court today. An absence of evidence from the applicant would not in itself answer the separate question as formulated in the sense that the separate question is wider in terms than just whether the Yirendali People, but for any extinguishment of native title, have native title in relation to the land comprising of the claim area. An absence of evidence from the applicant does, though, having regard to the onus of proof borne by the applicant in relation to proof of native title, have a very particular resonance in relation to whether, so far as that particular claim group is concerned, there is native title. 5 An ancillary question reserved by me by the directions made on 13 May 2015 concerned the fate of the substantive native title application. There is a need in the interests of justice and having regard to the objects of the Native Title Act 1993 (Cth) (Native Title Act) for the parties to have an opportunity, in my view, as to decide what consequential orders, if any, one or more of them might seek in light of the declaration against interest made on behalf of the applicant today. It would not be, in my view, procedurally fair to any party to expect an immediate response by way of substantive interlocutory application today by a respondent. 6 There are disparate respondent interests represented ranging from the State through local government to mining, public utility and pastoral interests. Not all of those respondent interests are coincident. With some respondents, there are matters of political value judgment which intrude either at Commonwealth, State or local level. In other cases, the interests do not entail political, but rather commercial, value judgment. There is a need for each of the respondent parties to have time to take a considered position in light of the statement made on behalf of the applicant. 7 I am also conscious that the Native Title Act provides for orders about matters other than native title which might be made by the Court pursuant to s 87(4). The making of such orders entails, necessarily, a very particular investigation by the State as to tenure. Such investigations do not happen overnight. There is a disposition on the part of the State, on reflection and at variance with a position earlier taken, to negotiate towards a non-native title outcome in respect of the whole of the area the subject of the native title application. The applicant, via its legal representative, has signified a willingness to participate in such negotiations. This, too, is a factor which I take into account in respect of the orders I propose to make. 8 There are particular pastoralists who are respondents. Some of them, I was informed from the bar table, have very particular interests in converting pastoral leases to freehold and in securing, on the strength of that, finance for activities in furtherance of particular pastoral interests on the land concerned. Some of that entails a desire for an outcome in the short term respect of the existence or otherwise of native title. That, as I have said, would still require evidence at a trial in that an absence of evidence from the applicant would only go to show that the Yirendali did not have native title, not that native title did not exist at all. A way of achieving that outcome that native title did not exist at all, short of trial, would be by way of agreement or by way of a particular consensual determination. This, too, would require time for the parties to reach that view. That may serve pastoral interests generally, although it may not serve individual, particular pastoral interests. 9 The point of all this, then, is that there is a need for time to be given for the respondent parties to seek consequential orders. There is also a need to recognise, as I have said, that there comes a time, in relation to an exercise of judicial power, where an applicant has been afforded all the time that ought to be allowed in terms of procedural fairness and the devotion of public resources to a particular claim by a particular native title group. As I have observed already, that time, in respect of this claim, has, in my view, passed today, having regard to the statement made in open court. 10 It is theoretically possible, and this was the subject of a very particular concern voiced on behalf of pastoral interests, that the applicant might later seek in this case, perhaps if equipped with further resources, to re enliven its claim for native title. Such an application would, of course, have to be dealt with on the merits but against the very particular background that I have described. Further, in granting the adjournment and the vacation of the trial, I have been expressly influenced by the view that, taking into account the interests of all respondents in certainty, the statement made in open court today by the applicant provides a sufficient basis, in terms of affording procedural fairness to respondents, particularly pastoral respondents, for vacating the trial date. In other words, in deciding to vacate the trial date, I am doing that because I have reached a view that the applicant has had its time to prove its case. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 1 June 2015