Federal Court of Australia Bonner on behalf of the Jagera Yagara Gurrangnam v State of Queensland [2021] FCA 35 File number: QUD 675 of 2019 Judgment of: REEVES J Date of judgment: 29 January 2021 Catchwords: NATIVE TITLE – application for leave to discontinue proceedings under r 26.12(4) of the Federal Court Rules 2011 (Cth) – where the application to discontinue was brought early in the proceedings – where the members of the claim group were consulted – whether any injustice will be caused to any other party if the orders are made – application granted Legislation: Federal Court Rules 2011 (Cth) Native Title Act 1993 (Cth) Cases cited: Levinge v Queensland (2012) 208 FCR 98; [2012] FCA 1321 Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 17 Date of last submissions: 22 October 2020 Date of hearing: Determined on the papers Solicitor for the Applicant: Mr M Paterson of P&E Law Counsel for the Respondent: The Respondent did not appear Solicitor for Queensland South Native Title Services Limited: Mr T Wishart of Queensland South Native Title Services Limited ORDERS QUD 675 of 2019 BETWEEN: JAMES BONNER AND MADONNA THOMSON ON BEHALF OF THE JAGERA YAGARA GURRANGNAM Applicant AND: STATE OF QUEENSLAND Respondent order made by: REEVES J DATE OF ORDER: 29 January 2021 THE COURT ORDERS THAT: 1. Pursuant to r 26.12(4) of the Federal Court Rules 2011 (Cth), the applicant has leave to discontinue the proceeding. 2. There is no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REEVES J: INTRODUCTION 1 Mr James Bonner and Ms Madonna Thomson, the two members of the authorised applicant of the Jagera Yagara Gurrangnam (the JYG Applicant), have applied for leave to discontinue the proceeding relating to the native title determination application which the JYG Applicant filed on behalf of the Jagera Yagara Gurrangnam (the application). 2 As the application is made by a representative body, leave is required under r 26.12(4) of the Federal Court Rules 2011 (Cth). 3 For the reasons that follow, I propose to grant the leave sought. FACTUAL CONTEXT 4 The application was filed on 1 November 2019. It was preceded by an authorisation meeting that was held at Esk in South East Queensland on 17 August 2019. That meeting was conducted in order to comply with the provisions of s 251B of the Native Title Act 1993 (Cth) (the NTA). 5 After it was filed, the application was referred to the National Native Title Tribunal (the Tribunal) under s 63 of the NTA for the purpose of registration under Part 7. 6 On 7 February 2020, a delegate of the Native Title Registrar (the Registrar) decided not to register the application on the ground that it did not satisfy all the conditions for registration prescribed by ss 190B and 190C of the NTA. Following that decision, the JYG Applicant applied to the Tribunal under s 190E of the NTA for it to be reconsidered. 7 On 22 June 2020, the Tribunal advised that its President had reconsidered the application and decided it should not be accepted for registration. 8 In addition to this background, there are two matters of significance that emerge from the affidavit material filed in support of the present application. The first is that, after due consideration, the senior members of the native title claim group have decided that they do not propose to bring any further native title determination application under the NTA. The second is that, in the circumstances outlined above, the JYG Applicant has formed the view that the application is potentially subject to dismissal under s 190F of the NTA. That section provides that a native title determination application may be dismissed by the Court where it has failed to gain registration under Part 7 and all the available avenues for review of the Registrar's decision, in that respect, have been exhausted. CONTENTIONS 9 It should first be noted that the parties have agreed that this matter ought to be determined on the papers. 10 In its written submissions, the JYG Applicant began by emphasising the circumstances in which the present application is being made, namely "its inability, in light of having twice failed the registration test, to amend the [application] in a way that would be likely to secure registration in the future". Against that background, the JYG Applicant contended that the present application was being made at an early stage in the proceeding; that no substantive orders to progress the proceeding have been made to date; and that no injustice will accrue to the State of Queensland or to any other respondent party in the event that the application is discontinued. In respect of the latter contention, it expressed its understanding that no respondent party opposed the present application. Finally, it claimed that it had sought the views of various members of the native title claim group and they have agreed with the proposed discontinuance and have indicated that they do not intend to file another native title determination application in the future. 11 The State of Queensland did not file submissions and indicated that it neither consented to, nor opposed, the present application. 12 The Queensland South Native Title Services Limited, the native title representative body for the region which includes the area affected by the application, filed a set of brief written submissions in which it supported, and consented to, the orders sought. CONSIDERATION 13 As a general proposition, leave will be given under r 26.12(4) to discontinue a proceeding where no injustice will be caused to any other party (see Levinge v Queensland (2012) 208 FCR 98; [2012] FCA 1321 (Levinge) at [38] and [44]). However, because a native title determination application under the NTA is, in essence, a representative proceeding, a factor which will usually affect the exercise of the discretion to discontinue a proceeding is whether the members of the native title claim group concerned have been consulted about the proposed discontinuance and expressed their views thereon (see Levinge at [47]-[49]). 14 In this matter, based on the affidavit material before me, I note the evidence that: (a) first, a message has been posted on the Facebook pages of the two broad groupings that make up the claim group (the Jagera Traditional Owners Group and the Jagera Yagara Gurrangnam Group) informing the members of those Groups of the Tribunal President's decision mentioned above (see at [7]); the proposal of the JYG Applicant to discontinue the proceeding; and its intention not to file a new claim; and (b) secondly, a recognised Elder of each of the families within the three lines of descent constituting the claim group has been spoken to and they have each agreed with the JYG Applicant's proposal to discontinue the proceeding and with its intention not to file a new claim. 15 Having regard to this evidence, I am satisfied that the members of the native title claim group have been duly consulted about the proposed discontinuance and expressed their support for it. This factor, together with those identified by the JYG Applicant in its written submissions (see at [10] above), have persuaded me that it is appropriate in the circumstances to exercise the discretion to grant leave to discontinue this proceeding. 16 Finally, having regard to the provisions of s 85A of the NTA and the absence of any submissions to the contrary, I consider that this discontinuance should occur without any order for costs being made. 17 Accordingly, the orders will be: 1. Pursuant to r 26.12(4) of the Federal Court Rules 2011 (Cth), the applicant has leave to discontinue the proceeding. 2. There is no order as to costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves. Associate: Dated: 29 January 2021